Courts

February 28, 2012

Forfeiture

Forfeiture cases are pursued by city prosecutors, county prosecutors, federal prosecutors, and/or United States Customs depending upon the circumstances. Forfeiture laws allow the government to seize and keep businesses, cash, cars, guns, homes, jewelry, and other property that it believes is related to criminal activity or that is a public nuisance. US Customs can seize and keep property that was not properly declared or otherwise not lawfully brought into the United States. Forfeiture is a multimillion dollar industry for local, State, and Federal government and police departments. Local police agencies boast about using money and property seized and forfeited to purchase police cars and police equipment, hire additional officers, and to upgrade law enforcement facilities. Hence, due to its profitability, the seizure of assets by law enforcement and Prosecutors is handled in a consistent and aggressive manner. In fact, there are usually specially assigned State and Federal Prosecutors which only handle forfeiture actions. The forfeiture laws, naturally, are a deck stacked in favor of the government and against property owners – even the innocent owner of property who unknowingly allows his or her property to be used in the course of a crime is subject to losing his or her property. In some cases, property can be seized, kept, and/or destroyed without even a Court order.

Fortunately, there are due process rights afforded to persons that suffer a forfeiture of assets, cash, and/or property. Even though forfeiture claims involve by and large civil litigation, the Michigan and/or United States Constitution provides individuals and businesses rights to be represented by an attorney, to confront witnesses, to present a defense, and the right to trial, which are critical and vital rights in the defense against a forfeiture action. Not all seizures are justified or legal, and there are remedies to such unlawful seizures which can be pursued.

The cost of litigation a forfeiture claim will sometimes lead a prosecution to abandon, compromise, or settle their claim to some or all of the seized property. If you do not contest the forfeiture there is a profit and not a loss to the government and the return of your property is unlikely. Some forfeiture actions involve property of small or little value, and you have to determine whether the effort in attempting to recover the property is worth the legal and personal cost. However, whenever a large forfeiture occurs it is important to immediately hire an attorney to pursue the return of your property through negotiation or trial.

February 18, 2012

Non Sufficient Funds Check – NSF Checks

by Hilf & Hilf, PLC

For the offense of Nonsufficient Funds (NSF) Check, the Prosecution must prove the following elements beyond a reasonable doubt:

1) That on a particular date the Defendant wrote or delivered a check, draft, or money order to a named individual or entity for a specific dollar amount;

2) The check, draft, or money order was drawn on a particular bank;

February 15, 2012

Arson of Personal Property

by Hilf & Hilf, PLC

When a fire occurs, the law assumes that it had a natural or accidental cause unless the Prosecution can prove beyond a reasonable doubt that the fire was set intentionally.

Arson of a Dwelling House is a 20 year maximum felony under Michigan law. The crime of Arson of a Dwelling House has 3 elements that the Prosecution must prove beyond a reasonable doubt in order to convict:

1) The Defendant burned the home or dwelling in question. Burn means to either set fire, do anything that results in the starting of a fire, or helping or persuading someone else to start a fire. If any part of the home is burned, no matter how small, that is all that is necessary to count as burning – the property does not have to be completely destroyed. Blackend by smoke is not considered as burning; any charring is considered as burning.

February 15, 2012

Unlawful Driving Away of an Automobile – UDAA

by Hilf & Hilf, PLC

There are a number of different criminal offenses related to the stealing or unlawful use of an automobile in Michigan. If charged with one of these offenses, you should seek the help of an experienced criminal defense attorney.

Unlawfully Driving Away an Automobile (UDAA) is a felony in Michigan that carries a maximum sentence of 5 years of incarceration. To prove this crime, the prosecution must establish beyond a reasonable doubt that the Defendant did either buy, possess, conceal, or aid in the concealment of a stolen motor vehicle, knowing or having reason to know or reason to believe that the motor vehicle was stolen, embezzled, or converted. The prosecution must prove that this was done without authority or without the owner’s permission. Also, it does not matter if the Defendant intended to keep the vehicle.

Unlawful Use of an Automobile (Unlawful Use of a Motor Vehicle) is a lesser offense of Unlawfully Driving Away an Automobile. The difference between these two offenses is that Unlawfully Driving Away an Automobile involves the unlawful taking of the Motor Vehicle in the first place. Unlawful Use of an Automobile applies if the Defendant got possession of the vehicle lawfully in the first place but then used it in a way that he or she knew was unauthorized.

February 15, 2012

Perjury

by Hilf & Hilf, PLC

Perjury in Michigan is treated as a serious offense because it attacks the integrity of the judicial system. Without question persons have been falsely convicted and imprisoned on the basis of lies and deceit, and providing an effective deterrent to such behavior is necessary. However, perjury charges sometimes come about as retaliation for failing to testify in a manner consistent with the Prosecution’s theory of the case. With Prosecutors there is always a balancing in these matters between gaining conviction, not deterring witnesses from stepping forward to testify, preserving the integrity of the system, protecting law enforcement or maintaining a relationship with law enforcement, and the interests of justice.

To prove Perjury beyond a reasonable doubt the prosecution must establish that:

1) The Defendant was legally required to take an oath in a proceeding in a court of justice. An Oath is a solemn promise to tell the truth;

February 14, 2012

Felony Murder

by Hilf & Hilf, PLC

There are 3 main murder charges in Michigan: First Degree Murder (also known as premeditated murder); Felony Murder; and Second Degree Murder. First Degree Murder and Felony Murder both carry as punishment life in prison without parole. Second Degree Murder carries the possibility of parole after many years in prison. To prove the crime of First Degree Murder beyond a reasonable doubt the prosecution must establish that:

1) The victim died;

2) The death was caused by the Defendant;

February 10, 2012

Robbery

by Hilf & Hilf, PLC

In Michigan, there are several offenses which can constitute Robbery, including: Armed Robbery; Unarmed Robbery; Assault with Intent to Rob while Armed; Assault with Intent to Rob while Unarmed; Carjacking; Bank, Safe, and Vault Robbery; and Home Invasion. All of these offenses are felonies, and require the assistance of an experienced criminal defense lawyer.

Armed Robbery in Michigan is a life maximum offense, that carries a mandatory prison sentence. If an aggravated assault or serious injury occurred during the commission of this offense, the prison sentence cannot be less than 2 years on the minimum prison sentence.

At trial, the Prosecution has the burden of proving the following 5 elements beyond a reasonable doubt:

January 31, 2012

Reckless Driving

by Hilf & Hilf, PLC

Reckless Driving in Michigan is viewed as a criminal offense. According to MCL 257.626 “…a person who operates a vehicle upon a highway or frozen public lake, stream, or pond or other place open to the general public, including, but not limited to, an area designated for the parking of motor vehicles, in willful or wanton disregard for the safety of persons or property is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both. If a conviction occurs, the punishment is set by the sentencing Judge within the limits described above. The Michigan Secretary of State also penalizes the driver by assessing 6 points to his or her license for 2 years from the date of conviction. However, this particular offense is not subject to expungement, and will always remain a part of the individual’s criminal and driving record upon conviction.

If another driver or pedestrian is injured or killed because of the reckless driving, the charge evolves into a felony. Reckless Driving Causing Death, pursuant to MCL 257.626(4) is a felony that carries a potential prison sentence of up to 15 years. Reckless Driving Causing Serious Impairment, pursuant to MCL 257.626(3), is a felony that carries up to 4 years in prison. Reckless or Careless Driving Resulting in a Miscarriage or Stillborn is a 2 year maximum felony offense. Likewise, these offenses result in drivers license sanctions. The driver is also potentially subject to a civil lawsuit which could result in a large money judgment.

Because Reckless Driving is viewed as a criminal offense, the accused driver must appear in Court, and cannot resolve the matter by just sending a check to the District Court for the city in which the allegation arose. A lawyer is required for this type of charge. For any criminal offense, the accused has the Constitutional protections of legal representation, a presumption of innocence, the burden of proof (beyond a reasonable doubt) resting with the prosecution, trial before a Judge or Jury, the right to confront witnesses, the right to compel witnesses to appear at trial, the right to testify, and the right to remain silent. When accused of any crime, it is recommended that you hire an experienced criminal defense attorney, such as the attorneys at Hilf & Hilf, PLC.

December 19, 2011

Perjury, Tampering with Evidence, Witness Intimidation, and Filing a False Police Report

by Hilf & Hilf, PLC

Perjury in Michigan is treated as a serious offense because it attacks the integrity of the judicial system. Without question persons have been falsely convicted and imprisoned on the basis of lies and deceit, and providing an effective deterrent to such behavior is necessary. However, perjury charges sometimes come about as retaliation for failing to testify in a manner consistent with the Prosecution’s theory of the case. With Prosecutors there is always a balancing in these matters between gaining conviction, not deterring witnesses from stepping forward to testify, preserving the integrity of the system, protecting law enforcement or maintaining a relationship with law enforcement, and the interests of justice.

To prove Perjury beyond a reasonable doubt the prosecution must establish that:

1) The Defendant was legally required to take an oath in a proceeding in a court of justice. An Oath is a solemn promise to tell the truth;

December 6, 2011

Cobbs Agreement, Plea Bargain, Sentence Bargain

by Hilf & Hilf, PLC

There are several types of criminal charge and sentence agreements in the State of Michigan:

A Cobbs agreement is a practice in Michigan criminal law Courts, based upon the case of People v Cobbs, 443 Mich 276 (1993), which allows a Judge to make an agreement with a Defendant concerning the sentence the Court will impose if the Defendant pleads guilty or no contest. Typically after a Defendant tenders a guilty or no contest plea pursuant to People v. Cobbs he or she is referred to the probation department for a presentence investigation and given a date to return for sentencing. At the presentence investigation the probation department obtains information concerning the conviction offense, a statement from the victim, the Defendant’s prior criminal and traffic related history, level of education, work history, alcohol and substance abuse history, family background, assets, and debts. The probation typically orders a drug and/or alcohol test as part of its investigation. The information collected by the probation department is placed into a sentencing report for the Judge, Prosecutor, Defense Counsel, and the Defendant to read and correct if necessary. If the Court cannot follow the Cobbs agreement the Defendant is allowed to withdraw his or her plea and proceed to trial, or enter into a new Cobbs agreement with the Court. If the matter proceeds to trial, the jury is not allowed to hear about the plea entered pursuant to People v Cobbs unless the Defendant elects to testify and that testimony is different from what he or she told the Court previously under oath during the taking of the plea. Not all Courts will entertain Cobbs agreements – different Judges have their own judicial philosophy and will not negotiate with a Defendant concerning sentencing. Some Judges limit their Cobbs agreement to staying within sentencing guidelines (which is what the Judge is legally obligated to do anyways. A Judge can only sentence outside of the guideline range if substantial and compelling reasons exist to allow for the deviation, which does not exist in the vast majority of cases). Furthermore, some Courts will condition the Cobbs agreement on the Defendant staying out of any further trouble, appearing at Court dates, and not violating the terms of his or her bond. If the Defendant does not follow these conditions, he or she is not allowed to withdraw his or her plea, and the Judge imposes the sentence it deems proper (which may be outside the Cobbs understanding.

A plea bargain is an agreement reached between the Prosecutor and the Defendant that if the Defendant pleads guilty or no contest to a particular criminal charge other charges will be dismissed or reduced in severity. Not all Prosecutor’s offices offer plea bargains. Sometimes a Prosecutor’s office will not offer a plea bargain based upon the philosophy of the Prosecutor, the nature of the charge, the opinion of the police department, the opinion of the alleged victim, and the Defendant’s prior history. Different counties within Michigan can have radically different positions concerning the plea bargain that they may be willing, or not willing, to offer. Some Prosecutors are not willing to allow a Cobbs agreement or a sentence bargain as a condition of an offered and accepted plea bargain. For any criminal charge related negotiation a skillful, experienced criminal defense lawyer is a necessity.