Crimes

September 8, 2015

Oakland County Work Release Program

Work release is a sentencing alternative in Oakland County that allows a person sentenced to a jail sentence to serve that sentence from the comfort of his or her own home but monitored through a tether ankle device. This program is allowed pursuant to Michigan Compiled Law 28.1747, and is often referred to a day parole. This program is not allowed for every Oakland County jail inmate sentenced to jail for a felony or misdemeanor conviction, but only for the select few that qualify and are allowed to participate:

1. The Court must order participation in the program. The Judge is the gatekeeper – if the Court denies or does not order work release, the Defendant will not be allowed to participate.

2. The Defendant must have verifiable employment.

August 27, 2015

What Are the Long Term Effects of a DUI Conviction?

by Hilf & Hilf, PLC

Criminal Defense Attorney
Late at night, when you are driving with your friends, you are only thinking about having fun. You may not even realize that you are not capable of driving because you’re intoxicated, but once you see those blue and red flashing lights, you know that you are in trouble. When that officer pulls you over, you begin to think about all the possible negative consequences. While there are many immediate consequences to deal with, the long term consequences can drastically alter your life.

Short-term consequences can include suspension of a driver’s license, fines, probation, drug classes, alcohol monitoring, and incarceration. The good thing is that all those punishments have an end date. But there is no telling how long you will be affected in other ways. For example, if you had a job when you were charged, you may lose your job if it deals with driving because you no longer have a clean driving record. When it comes to getting a new job in general though, many employers will conduct background checks before hiring and they can discover your DUI. This charge can greatly impact the hiring manager’s decision even if this was your first DUI offense.

Even though you can reinstate your driver’s license (if you do not have multiple DUI convictions within 10 years), you first must prove that your auto insurance will continue to give you the minimum coverage. If you are convicted, you will have to pay for a more expensive insurance called an SR22 and only a few insurance companies offer this insurance. You will also have to pay more fees when receiving a new policy and will be charged at least two times more than regular coverage.

July 10, 2015

How Can You Best Defend a DUI Charge?

by Hilf & Hilf, PLC

Being charged with driving under the influence is a very serious, and if you’re found guilty, you can face tough penalties. The attorneys at Hilf & Hilf are compassionate to your current legal situation, and we’ve represented many people that were facing similar charges. Even though each case is unique, there are a few ways in which a criminal defense attorney can help you defend against a DUI charge.

Before you can even be charged with a DUI, you must be pulled over. Officers should only pull you over if there is “reasonable suspicion.” So, a cop can pull you over if there is an indicator of alcohol impairment. For instance, if you are driving in an unusual pattern, they might pull you over. However, this could be caused from a mechanical defect or other road conditions. Even if your eyes are glassy, watery or bloodshot, that could be because you were extremely tired and not due to alcohol impairment. An officer might conduct a field sobriety test to determine if you were impaired. However, police officers are only human and can make mistakes with the field sobriety test. Since this test is subjective, it can be fought in court. Cops can also make mistakes with the documentation. If the documents were not properly filled out, that could be a way for you to challenge the DUI charge.

While technology can be a good thing, sometimes it’s inaccurate or even used incorrectly. Even if you failed the Breathalyzer test, the results could be inaccurate, so it can be challenged in court. There are procedures that must be followed by the police to allow for the admission at trial of a data master test result. If those procedures were not properly followed, it may be a basis for the dismissal of the case. There are times when you are taken to the hospital and they conduct a urine or blood test. Michigan has strict DUI laws, protocols and procedures that police officers must follow when conducting any test. Even experienced police officers can make mistakes when they are conducing these tests. If you hire an attorney from our firm, we will walk you through the process to determine whether the officers followed protocol. If they failed to follow procedures, then we have a chance at dismissing your DUI charge in court.

June 29, 2015

What Are the Consequences of a DUI Conviction in Michigan?

by Hilf & Hilf, PLC

DUI is a term many of us have heard before, and also something we all fear. Driving under the influence is dangerous for the driver and for all others on the road. Due to the seriousness of a DUI, Michigan places very severe penalties to discourage people to drive while intoxicated. If you have received a DUI charge, a criminal defense lawyer at Hilf & Hilf, is ready to defend you in the court of law. We understand the severity of DUI and understand how it can affect your life due to the penalties Michigan currently has in place.

If you are over the age of 21, Michigan’s legal alcohol limit, or your BAC (blood alcohol content), is .08 percent. While the penalties for a DUI or OWI (Operating While Intoxicated) vary depending on the offense, if you are caught while driving with a BAC over .08 percent, you will receive a DUI. For those under the age of 21, there is a Zero Tolerance Law, which means that if a minor even has .02 percent of alcohol in their system while driving, they will receive a DUI and must face the consequences of violating the law.

For a first offender, the penalties can be as severe as a 93-day jail sentence, fines of anywhere between $100 to $500, and a suspended license for six months. Also, if there are no extenuating circumstances, the first DUI offense is a misdemeanor. Fortunately, most judges will not sentence an individual to the full 93 days. However, the consequences become much more severe with each additional offense. For a second offense, the person faces the possibility of spending an entire year in jail. Other penalties include a fine from $200 to $1,000 and a suspended license for a minimum of 1 year (revocation of driving privileges for 2 convictions within 10 years), community service, rehabilitative programs, possible vehicle immobilization; fines/costs including reimbursing the government for emergency response and prosecuting the Defendant. Third time offenders have the same penalties as second time offenders with regard to fines and license suspension. Jail time is increased to 30 days up to 1 year. A person charged with OUIL 3rd Offense can receive a prison sentence up to 5 years (or more time if they are deemed to be a Habitual Offender). For a person determined to be “Super Drunk”, where the blood alcohol level is .17 or higher, there is a possible jail sentence of up to 180 days, $200-$700 fines, community service, rehabilitative programs, possible vehicle immobilization; fines/costs including reimbursing the government for emergency response and prosecuting the Defendant.

June 29, 2015

What Is Assault and Battery?

by Hilf & Hilf, PLC

Whenever you see a brawl at a bar, or a fight at school, what you observed was an assault and battery under the law. There is a distinction between the two but they are typically together because they go hand and hand. Assault and battery penalties are varies depending on who is involved (stranger, boyfriend, minor, etc.), if an object or weapon was used, and the type of injury sustained (bruise, strangulation, coma, etc.). If you found yourself in a situation where you were either charged with assault and battery or a victim, the criminal defense and DUI lawyers at Hilf & Hilf, PLC, can provide you with experienced and honest legal assistance.

To understand the difference between assault and battery in Michigan, you must first determine intention and contact. First, assault actually falls under two categories. The first is having the intention to cause physical injury to someone else or even intentional threat of action. Intentionally striking an individual with any type of object or your hand is assault. A simple push can constitute an assault and battery.

Since assault is intention of harming someone, battery is the actual contact from the assault. A few examples of this would be actually using the weapon to hurt the individual or punching another individual with your hands. Once there is contact from the offender to the victim, then battery has been committed. Michigan will combine the crimes as “assault and battery” because they essentially complete each other as a violent process. Whenever you have battery, you will always have assault beforehand because there was that impending violence then the actual violence.

June 23, 2015

Understanding the Difference Between Public Defenders and Private Attorneys

by Hilf & Hilf, PLC

Movies, television shows, and books portray public defenders as second-class attorneys that are incompetent while private attorneys only care about making money and do not put their clients first. Both of these classifications of attorneys portrayed in entertainment are false. While there is a difference between public defenders and private attorneys, it is not what is shown on television or movies.

Public defenders and private attorneys embarked on their journey of law school, graduated and passed the bar exam. They all have considerable experience to represent clients. The main difference between public defenders and private attorneys is that public defenders are hired as counsel for those people who have no means to hire their own counsel while private attorneys are hired without any approval from the court.

Private attorneys can devote much of their time to a client’s case because they can decide which cases they would like to take on and how many they can handle at a time. It can be more beneficial for the clients to hire private counsel because they can be very selective. They have the ability to interview different attorneys and choose who they think would best represent their case while clients with public defenders do not have this option. Furthermore, a client can change their private counsel at any time if they do not feel the attorney is representing them to the best of their ability while the client cannot discharge their public defender without approval from the Court.

May 22, 2015

Adjourning a Criminal Trial

by Hilf & Hilf, PLC

It is very common for someone accused of a crime to seek an adjournment of their trial. There are many reasons why someone would want an adjournment, including: the desire to retain new counsel; the need to obtain additional discovery; the need for additional preparation; the unavailability of witnesses on the date scheduled for trial; the unavailability of the lawyer due to another trial or other conflict; personal reasons such as a family emergency or illness; a desire to negotiate longer with the prosecution concerning a possible plea bargain or sentence bargain; the desire of the Defendant and his/her lawyer to address another case pending against the Defendant first; the lawyer’s desire to have his client evaluated for mental competency; etc., etc.

In Michigan, Judges have discretion to grant or deny adjournments of trial or other court proceedings. MCL 768.2 provides, in pertinent part:

No adjournments, continuances or delays of criminal causes shall be granted by any court except for good cause shown in the manner provided by law for adjournments, continuances and delays in the trial of civil causes in courts of record: Provided, that no court shall adjourn, continue or delay the trial of any criminal cause by the consent of the prosecution and accused unless in his discretion it shall clearly appear by a sufficient showing to said court to be entered upon the record, that the reasons for such consent are founded upon strict necessity, and that the trial of said cause cannot be then had without a manifest injustice being done.

May 13, 2015

Suppressing a Confession

by Hilf & Hilf, PLC

Typically when a confession is being contested in a criminal case the Defendant’s lawyer will file a motion with the Court assigned to the case and request an evidentiary hearing pursuant to People v Walker, 374 Mich 331 (1965). The hearing considers the totality of the circumstances surrounding the statement made.

The United States and Michigan Constitutions guarantee a criminal defendant the right against self-incrimination. US Const, Am V; Const 1963, art 1, § 17; People v Cheatham, 453 Mich 1, 9; 551 NW2d 355 (1996). Statements made by a defendant during a custodial interrogation are therefore inadmissible absent a voluntary, knowing, and intelligent waiver of the defendant’s Fifth Amendment rights. People v Tierney, 266 Mich App at 707, citing Miranda v Arizona, 384 US at 444. Miranda warnings only apply to custodial interrogation. Often an issue at a Walker hearing is whether or not the Defendant was in custody at the time that the statement was made.

“Whether a statement was voluntary is determined by examining police conduct, but the determination whether it was made knowingly and intelligently depends, in part, on the defendant’s capacity.” People v Tierney, 266 Mich App at 707. For instance, a mental illness that prompts the defendant to confess to a crime does not render the confession involuntary absent an element of police coercion. See Colorado v Connelly, 479 US 157, 164; 107 S Ct 515; 93 L Ed 2d 473 (1986). By contrast, the question of whether a defendant’s waiver was knowingly and intelligently made requires the court to make “sweeping inquiries into the state of mind of a criminal defendant who confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State.” People v Cheatham, 453 Mich at 21-22, quoting Colorado v Connelly, 479 US at 167. Accordingly, the Miranda waiver analysis is bifurcated into two parts: (1) whether the defendant’s waiver was voluntary, and; (2) whether the waiver was also knowing and intelligent. People v Daoud, 462 Mich 621, 639; 614 NW2d 152 (2000). The prosecutor bears the burden of proving that the defendant validly waived his rights by a preponderance of the evidence. Tierney, 266 Mich App at 707.

April 30, 2015

Search Warrants in Michigan

by Hilf & Hilf, PLC

The Fourth Amendment to the United States and Michigan Constitutions, Michigan Statutory law, and case law govern the use and legality of search warrants in Michigan for State court proceedings. The 4th Amendment to the United States Constitution provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. The remedy for an improper search is the exclusion of evidence. Mapp v. Ohio, 367 US 643 (1961). There are a number of exceptions to the search warrant requirement that sometimes justify warrantless searches to occur (for example: consent, plain view; exigent circumstances, automobile, search to lawful arrest, searches at the boarder or airport, the Patriot Act, etc.). The applicability of these exceptions depends upon the facts of the particular case. With regard to any criminal law issue that may pertain to you – seek the assistance of an experienced criminal lawyer such as the lawyers at Hilf & Hilf, PLC.

Obtaining a Search Warrant

Search warrants are issued by either District Court Judges or magistrates that are authorized by a District Court Judge to issue search warrants to law enforcement. A District Court Judge or magistrate may issue a search warrant for anywhere in the State of Michigan, and is not limited by the District Court’s jurisdiction where the Judge is seated. People v. Fiorillo, 195 Mich App 701 (1992). The standard of proof for the issuance of search warrants is probable cause. A District Court Judge or magistrate needs to find that there is a “fair probability” that the evidence seized will be at the location to be searched. People v. Russo, 439 Mich 584 (1992). Probability is not a prima facie showing, nor a preponderance of the evidence. Illinois v. Gates, 103 S Ct 2317 (1983). It is permissible for law enforcement to obtain a search warrant that anticipates that evidence will be found at a particular location as long as the search warrant indicates that there is probable cause that the item described is likely to be found in the place described. For example, a seizure of drugs from a traffic stop that suggest drug distribution may lead to a search warrant of the home of the vehicle occupant. United States v. Grubbs, 126 S Ct 1494 (2006); People v. Kaslowski, 239 Mich App 320 (2000). The search warrant can contain multiple locations to search if the allegations in the affidavit for search warrant satisfy the requisite finding of probable cause. People v. Cyr, 113 Mich App 213 (1982).

April 28, 2015

Does the prosecution need to present all the witnesses at trial?

by Hilf & Hilf, PLC

The prosecution in Michigan generally does not have to present every witness at trial, but must produce enough evidence on every element of the charged offense to withstand a motion for directed verdict at the conclusion of the prosecution’s case. Michigan Court Rule 6.419 provides that “after the prosecutor has rested the prosecution’s case in chief or after the close of all evidence, the court on Defendant’s motion must direct a verdict of acquittal on any charged offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government’s evidence, the Defendant may offer evidence without having reserved the right to do so”. The Defense has to convince the trial Judge that the evidence in the light most favorable to the prosecution cannot support a conviction.

There are some instances in which heresay evidence is permissible under the Michigan rules of evidence in lieu of presenting a witness. The rules pertaining to heresy are complicated, and it is the role of the lawyer to try and admit or exclude evidence depending upon the circumstances of the case.

Upon request of the defense, the prosecutor must provide “reasonable assistance” to the defendant to secure defense witnesses for trial. People v Koonce, 466 Mich 515, 521; 648 NW2d 153 (2002); MCL 767.40a(5). However, a Prosecutor no longer has a duty to discover and produce all res gestae witnesses. People v Perez, 469 Mich 415, 419; 670 NW2d 655 (2003); MCL 767.40a. If the prosecutor endorses a witness under MCL 767.40a(3), then the prosecutor must exercise due diligence to produce the witness. People v Wolford, 189 Mich App 478, 483- 484; 473 NW2d 767 (1991).