Courts

July 31, 2011

Holmes Youthful Trainee Act (HYTA)

In Michigan, pursuant to MCL 762.11 and MCL 762.13, individuals from the age of 17 until their 21st birthday who are convicted of a crime may be eligible for Holmes Youthful Trainee Act (HYTA) to avoid a public record of conviction. For individuals that are at least 21 years old, but you’re than 24 years old, HYTA can be obtained with the consent of the prosecutor and the Court. In this manner, the convicted individual can report to employers and colleges that they do not have a criminal record. An assignment of HYTA shall not be deemed a conviction of a crime and such person shall suffer no civil disability, right or privilege following his or her release from such status because of such assignment as a youthful trainee. The rationale behind HYTA is that young persons often have issues with immaturity and flawed judgment, and in some instances should be given a second chance so the conviction will not hurt them in the future.

All proceedings relative to the sentence imposed under HYTA are closed from public inspection. The records area available to the Courts, the Department of Corrections, the Department of Social Services, the criminal defense attorney, and law enforcement in the performance of their duties. The victim of the crime also is not precluded from receiving notice, information, and records that otherwise are closed to public inspection (see MCL 780.752a, MCL 780.781a, MCL 780.811b).

For any case in which HYTA might be applicable it is important to retain an experienced criminal defense lawyer such as attorney Daniel Hilf. This is something that should not be left to chance or second rate legal representation. It is too important.

July 28, 2011

Substance Abuse Assessments in Michigan Criminal Cases

by Hilf & Hilf, PLC

In Michigan Courts, substance abuse assessments often are ordered by Circuit Court and District Court Judges prior to sentencing a Defendant. The assements usually consist of interviews, drug testing, and diagnostic testing. The sentencing Judge is required by Michigan law to order a substance abuse assessment in drinking and driving cases. The sentencing Judge has the discretion to order a substance abuse assessment for a Defendant even if the conviction is not related to drugs or alcohol. The purpose behind the substance abuse assessment is to see whether the Defendant will benefit from rehabilitative services such as drug treatment programs, alcohol treatment programs, and educational programs as part of his or her sentence. At the time of sentencing the probation department makes a recommendation to the sentencing Judge as to a course of treatment for the Defendant, and it is the decision of the Court whether or not to adopt that recommendation.

The diagnostic testing used by the probation department include:

1. ADE Needs/Risk

July 26, 2011

Traffic Ticket Defense

by Hilf & Hilf, PLC

If you receive a traffic ticket in Michigan, there are consequences beyond paying the scheduled fine for the offense. If the traffic ticket appears on your driving record it can impact your insurance rates, your ability to continue to drive (if you get too many points), your employment (if your employment involves driving), and the chances of getting a break from police officers, Prosecutors or City Attorneys for future traffic offenses.

The key is to have the traffic ticket not appear on your record when possible. There are a couple ways in which this can occur: you beat the allegation at a contested hearing; the officer fails to appear for the contested hearing and the matter is dismissed; OR there is a negotiated settlement of the ticket with the police officer, Prosecutor or City Attorney to resolve the matter in a way where the ticket does not get abstracted to the Michigan Secretary of State.

The best way to handle a traffic ticket is to seek the help of an experienced traffic lawyer. I recommend attorney Daniel Hilf for all traffic tickets.

July 20, 2011

Michigan Department of Corrections SAI Prisoner Boot Camp

by Hilf & Hilf, PLC

In Michigan, a person facing prison may shorten their incarceration if they are placed in and successfully complete the MDOC SAI Prisoner Boot Camp. Both men and women are candidates for the program. The first portion of the program is ninety (90) days in length, during which the inmate participates in strenuous physical exercise, community projects work, educational and vocational counseling. Inmates who successfully complete the boot camp program are immediately paroled to aftercare in the area of the inmate’s residence. The aftercare component is a combination of a 30 day residential substance abuse treatment program and 90 days on electronic monitoring. If an inmate does not exhibit a need for residential substance abuse treatment, the 30 day residential treatment program can be waived and the probationer will participate in electronic monitoring for 120 days. The inmate is then placed on 5 months of intensive monitoring. Inmates who fail the program are transferred to a regular prison to complete their sentence.

Not everyone qualifies for Michigan SAI Prisoner Boot Camp. The following is a partial list of offenses which would exclude an inmate from participating in the MDOC SAI Boot Camp program: OUIL offenses on or after 1/1/93; Sexually Delinquent Person; Taking a Woman and Compelling Her to Marry; Animals – fighting, baiting, or shooting; Animals – Dogs Trained for Fighting; Burning a Dwelling House; Burning of Other Real Property; Burning of Insurance Property; Setting Fire to Mines and Mining Material; Assault with Intent to Commit Murder; Assault with Intent to Maim; Assault with Intent to Rob and Steal; Armed Robbery; Attempt to Murder; Burglary with Explosives; Cruelty to Children; Child Abuse; Child Sexually Abusive Material; Solicitation of any felony; Crime Against Nature; Sodomy; Escape from Jail or Prison; Placing Explosives with Intent to Destroy; Extortion; Counterfeiting and possession of coins; First Degree Murder; Second Degree Murder; Death as result of Fighting or a Duel; Manslaughter; Death due to Explosives; Indecent Exposure; Gross Indecency; Kidnapping; Prisoner Taking Another as Hostage; Kidnapping Child under 14 years; Mayhem; Perjury; Poisoning; Railroads – Attempt to Wreck or Endanger; Forcible Detention of Railroad Train; First Degree Criminal Sexual Conduct (CSC); Second Degree CSC; Third Degree CSC; Assault with Intent to Commit CSC; Robbery; Aggravated Assault; Carjacking; Bank Robbery; Safebreaking; Treason; Incitement to Riot; Offenses that involve death or homicide.

There are other reasons that could disqualify a prisoner from MDOC SAI Boot Camp eligibility:

July 11, 2011

Why Should I Retain A Criminal Defense Attorney?

by Hilf & Hilf, PLC

If you cannot afford a lawyer, you are entitled to have the Court appoint a lawyer to represent you in any criminal proceeding where the Court may incarcerated you. A appointed lawyer does not necessarily mean a free lawyer – the Court, more often than not, orders the Defendant to reimburse the jurisdiction for court appointed attorney fees. The fee may be hundreds to thousands of dollars depending upon the amount of work the attorney performs. Sometimes you truly get what you pay for. By requesting a court appointed attorney, you lose the choice to hire who you want to represent you.

There is a chance that luck will be on your side, and the attorney you receive will be a dedicated advocate on your behalf. There is also the risk, however, that the court appointed attorney may be inexperienced, ill prepared, overworked, and/or apathetic.

Many counties in Michigan do not pay (or pay a minimal amount) for the court appointed attorney to file and argue motions (things like Motions to Quash, Motions to suppress evidence, Motions to reduce and/or modify bond), which sometimes reduces the likelihood that such a motion will even be filed. Some (not all) court appointed attorneys will not file these motions on your behalf because they do not get paid to do so. Some Courts pay public defenders less than a couple hundred dollars to conduct a trial, which reduces the time that the attorney may dedicate to prepare for the trial. The court appointed attorney also may be reluctant to conduct a trial, because they believe (rightly or wrongly) that the Judge who assigned the case to them will not continue to do so if trials are the result. If you are incarcerated, it is often difficult for you to maintain regular contact with your lawyer if they are court appointed. Some Courts either do not pay for jail visits, or limit the number of jail visits that the court appointed attorney can bill for. Unfortunately, good results are often the product of effective, fearless, and dilligent preparation.

July 11, 2011

Preliminary Examinations in Michigan – the decision to hold or waive.

by Hilf & Hilf, PLC

In Michigan, A Defendant who is charged with a felony or a high court misdemeanor (an offense that carries a maximum sentence of greater than 1 year) has a right to a preliminary examination. A preliminary examination is a hearing in front of a District Court Judge to determine if there is probable cause to believe that a crime occurred within the jurisdiction of the District Court, and probable cause to believe that the Defendant committed that offense. It is not a finding of guilt or innocense, it is a finding of sufficiency. The Judge considers whether or not there enough evidence to create a question of fact where the matter can be considered at the Circuit Court (the trial court level).

The Defendant and the Prosecution both have the option to hold or waive the preliminary examination. The waiver of the preliminary examination can occur at the probable cause conference, which is the first court hearing after the arraignment. If either the Defendant or Prosecution elects to hold the preliminary examination, the same occurs within 14 days of the Defendant’s arraignment on the charge or charges which brought him/her before the Court. This 14 day rule can be waived if the Court makes a determination that there is good cause to waive this time period.

If the preliminary examination is held, the District Court Judge first listens to the testimony of Prosecution witnesses, and also reviews exhibits that are received by the Court. The Defense attorney has the opportunity to cross examine any witness called by the Prosecution. At the conclusion of the Prosecution’s case, the Defense is allowed to call witnesses and introduce exhibits. Witnesses can be subpoenaed for Court if necessary. The Defendant has the option to testify at the preliminary examination (which is never a good idea). It is important to have great legal representation at the preliminary exam.

July 11, 2011

Testifying In Court Regarding Criminal Allegations

by Hilf & Hilf, PLC

Nobody likes having to testify in Court. It is a nervous experience, especially if you are accused of some sort of wrong doing, or if a friend or family member is so accused and you are in Court concerning the accusation.

If there is a possibility that the answer could incriminate yourself, you have a 5th Amendment Privilege not to testify. There are other instances in which privilige can be asserted in order to limit or prevent the testimony from being offered. Whenever you have a question about a privilege that may apply to your situation, you should consult with a lawyer. In the absence of a privilege, testimony can be compelled.

Defendants and witnesses are free to retain a lawyer to represent their interests. For excellent legal representation you should consider having Attorney Daniel Hilf as your lawyer.

July 11, 2011

Obtaining Bail or Bond in Michigan Criminal Cases

by Hilf & Hilf, PLC

The purpose behind the setting of bond or bail is to ensure that the Defendant appears at future Court dates, and to protect society from danger. Courts, when they set a bond can consider: personal bonds (which means that no money has to be paid for the Defendant to remain free in the community); cash bonds; surety bonds; and 10% provisions (which means that the Court only requires 10% of the total bond amount to be posted. The Court, however, will keep 10% of the 10% posted at the conclusion of the case – provided that the bond is not forfeited by the Court because of a violation of the bond by the Defendant).

The Court can deny any bond if the Defendant is charged with murder or treason. Also, if the accusation is a violent felony, and at the time of the alleged commission of the violent felony, the Defendant was on probation, parole, released pending trial for another alleged violent felony, OR during the 15 years preceding the alleged violent felony, the Defendant had been convicted of 2 or more violent felonies arising out of separate incidents, the Court can also deny bond if the Court finds that proof of the Defendant’s guilt is evident or the presumption is great. The Court also has the ability to revoke the Defendant’s bond upon conviction and prior to sentencing for a violent felony offense.

Other than that, the Court has to set a bond. However, Judge’s have wide discretion to set unreasonable bonds. Because some Courts have tendencies to set unreasonable bonds, it is important that the Defendant is represented by an experienced and talented attorney who is prepared to address the issue with the Court.