Crimes

April 18, 2012

Should I Talk To The Police?

Should I Talk To The Police? This is a question that I am often asked, and in most cases the answer is no.

After an arrest, or during the course of an investigation, a police officer or detective will make efforts to interview any witness or witnesses to a crime, including any potentiall suspect. The impression that many people have is that the investigation which is occurring is balanced – that the police officers and/or detective in charge of the file has an open mind and is trying to weigh and seek the truth to the different accounts or competing claims that arise. Many people that are suspects to a crime that are innocent believe, or are told, that giving a statement is in their best interest. In most cases, speaking to a law enforcement officer about your side of the story is not a good idea. The role of a police officer or detective is to build a criminal case against an individual by collecting evidence and statements that constitute probable cause. Any statement made by person can and will be used against them in a Court of law.

When a person is in custody they are considered a suspect to a crime. Police officers will attempt to monitor and collect any statements made by a suspect such as pre arrest non custodial statements, statements recorded in the back of a patrol car with a hidden recorder, volunteered statements by a suspect, and monitored telephone calls at the jail. The suspect at a certain point is usually brought to a room for questioning by a detective. Often these conversations are secretly recorded, especially when the allegation is serious. The suspect is usually advised of Miranda Rights both orally and by a form that is usually initialed and signed by the suspect with the unstated purpose to help ensure that the statement cannot be suppressed by an experienced defense lawyer.

April 10, 2012

Drug Paraphernalia

by Hilf & Hilf, PLC

Possession of Drug Paraphernalia in Michigan, pursuant to MCL 333.7451 and MCL 333.7455(1), is a misdemeanor, punishable by imprisonment for not more than 90 days, or a fine of not more than $5,000, or both. Sale of Drug Paraphernalia by a person 18 years old or older to someone under the age of 18 years in Michigan, according to MCL 333.74511 and MCL 333.7455(2), is a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $7,500, or both. These offenses are also sometimes prosecuted as local ordinance violations which are also considered to be misdemeanors. A person convicted of either Possession of Drug Paraphernalia or Sale of Drug Paraphernalia is not eligible for section 333.7411 (which is a special provision in Michigan law to have the offense not appear on a Defendant’s record). However, these offenses are eventually eligible for expungment, if the person otherwise qualifies, 5 years after the conviction is entered or incarceration ceases (whichever is later).

What is Drug Paraphernalia? Drug paraphernalia is defined under MCL 333.7451 as any equipment, product, material, or combination of equipment, products, or material, which is specifically designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. Examples of Drug Paraphernalia include (but are not limited to): marijuana pipes, marijuana grinders, rolling papers, heroin works kits (spoon, syringe, hose, etc), cocaine kits (razor blade, mirror, etc.), snorters, scales for weighing drugs, etc.

Will I Be Prosecuted For Possessing Something That Could Be Used As Drug Paraphernalia? The law in Michigan recognizes that there are devices that have legitimate uses which can also be used as Drug Paraphernalia such as hypodermic needles, pipes, mixing devices, etc. Under MCL 333.7457 persons that sell these items for legitimate purposes are not going to be prosecuted. For the consumer or user of an item such as a hypodermic needle (that has a potentially legitimate and a potentially illicit purpose) the intent of the person who possesses the item is the key issue. For example, a diabetic who possesses a hypodermic needle to inject insulin has committed no crime. However, a hypodermic needle found with a spoon and a lighter is evidence that the intent of the possessor of those items is to use heroin and would likely be classified as Drug Paraphernalia by a police officer, city attorney and/or prosecutor. A person with rolling papers together with marijuana should be treated differently under the law in Michigan than a person with rolling papers together with regular tobacco.

April 7, 2012

Extradition to Michigan

by Hilf & Hilf, PLC

Hiring a criminal defense attorney for legal representation for yourself, a family member, or a friend for a criminal arrest or criminal allegation sometimes is very difficult, especially when extradition occurs. Although a Defendant can challenge the extradition at a hearing, by and large the only issue when someone is extradited from Michigan is whether or not the Defendant is the same person who is named on the out of state warrant. Innocence of the Defendant, even when his or her innocence is overwhelming, will not prevent extradition from occurring.

One of the hardest parts when someone is extradited to Michigan and needs a criminal lawyer is that it is often an unexpected expense which usually comes at the worst possible time. An experienced criminal lawyer is a necessity in as much as the person who is extradited to Michigan is already at a disadvantage with the Court as it relates to bond and potential issues concerning flight to avoid prosecution. Under the best of circumstances, money is available to retain the criminal defense lawyer for the agreed upon amount and the issue of ability to pay is not an issue.

When retaining a Michigan lawyer from out of state, the most common methods of payment are: credit card payments, money transfers between bank accounts, wiring money, and mailing checks or money orders. Checks or money orders are usually sent overnight mail due to the need for a lawyer to take action immediately. A written fee agreement can be sent through email or regular mail after an understanding as to the terms of representation are reached over the telephone. Of course, in some instances family members and/or friends of the Defendant travel from out of state to Michigan in order to show support and to find a criminal lawyer. If contact is made with Hilf & Hilf, PLC, an appointment can be scheduled to meet at our law offices at a mutually convenient time so that your questions and concerns are promptly addressed, and immediate steps can start in the defense of your loved one by an experienced criminal defense lawyer.

April 5, 2012

Failure to Stop at an Accident

by Hilf & Hilf, PLC

In Michigan, pursuant to Michigan Compiled Law 257.617, the driver of a vehicle who knows or who has reason to believe that he or she has been involved in an accident upon public or private property that is open to travel by the public shall remain there until the driver gives his or her name and address, the registration number of the vehicle he or she is driving, the name and address of the owner of the vehicle, to a police officer, the individual struck, or the driver or occupants of the vehicle with which he or she has collided. The driver must also show his or her driver’s license to the aforementioned people as well. If there is anyone injured in the accident the driver must give reasonable assistance in securing medical aid or arranging for the transportation of any injured person. If there is a reasonable and honest belief that remaining at the scene will result in further harm, the driver must immediately report the accident to the police. When a driver collides with a vehicle that is either attended or unoccupied, the driver has the responsibility to locate and notify the owner of the vehicle with the name and address of the driver. If the owner cannot be located, the driver has the duty to report it to the nearest police officer. The same is true if the driver collides with property on or adjacent to a highway, such as a telephone pole or a road sign.

Failure to stop at an accident is also referred to as hit and run. Oftentimes it is the result of one car tapping another. Sometimes it is difficult to distinguish if damage to another car was caused by tapping the other car, or if the damage previously existed. Basically, according to the law, when in doubt you need to error on the side of caution and immediately report the accident.

Why do you need to retain a lawyer for this offense? Failure to Stop at an Accident is a 90 day misdemeanor with a possible fine of up to $100. When a minor injury occurs during the accident the offense is still a misdemeanor charge, however it carries a maximum possible punishment of up to 1 year in jail, a fine of up to $1,000, or both. If the Failure to Stop at the Scene of the Accident Results in Serious Impairment of a Body Function or Death, the offense becomes a felony punishable for more than 5 years in prison, a fine of not more than $5,0000, or both. When the Failure to Stop at the Scene of the Accident Results in Death and the Driver is at Fault, the charge becomes a 15 year maximum felony with a possible fine of up to $10,000. Conviction for any of the aforementioned offenses also results in 6 points on the driver’s driving record, driver’s responsibility fees, potential loss of driving privileges, and assuredly higher insurance rates for those still with driving privileges. There is also the possibility of restitution and/or a civil lawsuit anytime a driver or passenger is injured in any type of an accident.

March 29, 2012

Top 50 Felony Offenses in Michigan

by Hilf & Hilf, PLC

An article in the March 2012 Michigan Bar Journal, authored by retired Circuit Court Judge John Hammond, listed the 50 most frequently occurring felony offenses in Michigan. They are listed in order from the most common to the least common, however the list only reflects a fraction of the total number of possible felonies in Michigan.

1. Possession of a Controlled Substance less than 25 Grams (Cocaine/Narcotic)

2. Manufacture or Delivery of Less than 5 Kilograms of Marijuana

March 28, 2012

Attorney for Crime Victims

by Hilf & Hilf, PLC

In many instances a victim pursues a criminal case with vigor and determination to receive justice, and will stop at nothing to have his or her position heard and advanced. In Michigan a victim has an absolute right to be heard, informed, and consulted with as to the prosecution of the Defendant. A victim has a right to hire a lawyer to advocate on his or her behalf.

On many occasions a victim regrets the decision to involve law enforcement with an argument or dispute that arose with a wife, husband, fiancée , mother, father, son, daughter, other family member, or friend. In most cases in Michigan the position of the Prosecutor or city attorney is that they represent the People of the community, and protect the community in general from harms or disturbances of the peace. A criminal case is never entitled the name of the victim versus the name of the Defendant – it is always the People or City versus the Defendant. Even when the victim strongly tells the Prosecutor and police that they wish for the matter to be dismissed, the desire of the victim is often not followed.

When a victim’s position is contrary to the Prosecution and police, this is a good time to retain an experienced lawyer. Victims are often met with disrespect and threats of what will happen if he or she fails to cooperate with the prosecution of the case. The Court itself will sometimes try to place pressure on the victim and the Defendant by establishing stringent bond conditions, such as no contact between the Defendant and the victim with a delay before the next Court hearing. A no contact provision can create a real hardship, often causing monetary (such as the cost for the Defendant to live in a hotel or elsewhere), emotional, and child care issues.

March 26, 2012

Financial Transaction Device – Unlawful Sale, Use, or Possession.

by Hilf & Hilf, PLC

In Michigan there are several crimes related to credit card fraud, debit card fraud, and gift card fraud or point of sale fraud that are commonly prosecuted. The above mentioned items are also referred to in Michigan as financial transaction devices. Even the possession of someone else’s account number, credit card number, PIN (personal identification number), personal account, or business account can be prosecuted when possessed fraudulently to obtain money, a refund, or credit for goods, services, or other things of value under certain circumstances.

The most common financial transaction device fraud or credit card fraud case in Michigan is for stealing, taking, removing a financial transaction device from the deviceholder. MCL 750.157n(1) provides that a person who steals knowingly takes, or knowingly removes a financial transaction device from the person or possession of a deviceholder, or who knowingly retains, knowingly possesses, knowingly secretes, or knowingly uses a financial transaction device without the consent of the deviceholder, is guilty of a felony. This crime carries a maximum possible punishment of up to 4 years in prison.

There are sophisticated financial transaction device crimes that involve devices that are fraudulently made or altered to duplicate a legitimate credit card, debit card, or gift card. Under MCL 750.157n(2) a person who knowingly possesses a fraudulent or altered financial transaction device is guilty of a felony. There is a market for selling, trading, or otherwise giving away financial transaction device. According to MCL 750.157p a person who has in his or her possession, or under his or her control, or who receives from another person a financial transaction device with the intent to use, deliver, circulate, or sell the financial transaction device, or to permit, cause, or procure the financial transaction device to be used, delivered, circulated, or sold, knowing the possession, control, receipt, use, delivery, circulation, or sale to be without the consent of the deviceholder, is guilty of a felony. The person who with intent to defraud, forges, materially alters, simulates, or counterfeits a financial transaction device is guilty of a felony under MCL 750.157r. All of these crimes carry a maximum possible penalty of up to 4 years in prison.

March 19, 2012

Top 10 Ways to Afford a Criminal Lawyer

by Hilf & Hilf, PLC

Hiring a criminal defense attorney for legal representation for yourself, a family member, or a friend for a criminal arrest or criminal allegation is sometimes is very difficult. The hardest part is often that it is an unexpected expense which usually comes at the worst possible time. Under the best of circumstances, money is available to retain the criminal defense lawyer for the agreed upon amount and the issue of ability to pay is not an issue. This, of course, is not always the case. The attorney fee charged varies between lawyers, and usually the amount to retain the lawyer contemplates the complexity of the matter, the time commitment involved, the inability of the lawyer to handle other matters due to the time commitment, and the reputation and experience of who you hire. That being said, there are several payment options which may make experienced criminal defense legal representation more affordable than you think:

First, payment plans are sometimes available, however the attorney will always need enough of a down payment to enter an appearance and appear on the case;

Second, credit card payments are sometimes a solution;

March 16, 2012

Possible Criminal Defenses

by Hilf & Hilf, PLC

Not all defenses to crimes in Michigan are discussed in this blog. Some of these defenses do not apply to certain offenses, or may not be allowed by a trial Court based upon case law and judicial interpretation. You should always seek the advice of an experienced attorney such as Attorney Daniel Hilf as to which, if any of these defenses, are applicable to your situation. The defenses are listed in alphabetical order.

Abandonment and Renunciation – These are affirmative defenses. Voluntary abandonment is when the Defendant repents or has a genuine change of heart. Abandonment is not voluntary when the Defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, circumstances which increase the probability of detention or apprehension, or when the Defendant decides to postpone the criminal conduct to another time or with a different victim. Abandonment that is not voluntary is not a defense to the crime. Voluntary abandonment requires the Defendant to show by a preponderance of the evidence that he or she gave up the idea of committing the crime. It must be a choice of free will, and the abandonment of the crime must be complete. Abandonment can occur at any time before the crime is actually completed or before it becomes impossible to avoid completing it (for example, you cannot argue abandonment of a murder after the victim has already been shot). Renunciation, pursuant to MCL 750.157b(4), states that it is an affirmative defense to a prosecution that under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose, the actor notified the person solicited of his or her renunciation and either gave timely warning and cooperation to law enforcement authorities or otherwise made a substantial effort to prevent the performance of the criminal conduct commanded or solicited, provided that the conduct does not occur. The Defendant has the burden of proving this defense by a preponderance of the evidence. If the allegation is solicitation of a murder and the Defendant merely refuses to pay the hit man (expecting that the hit man would not go forward with the crime) does not meet the requirements of renunciation without contacting law enforcement or taking additional steps to prevent the crime.

Accident means that the Defendant did not intend to commit a specific crime, and that something occurred through a mishap or unexpectedly. For example, a Defendant could argue that an unintentional penetration occurred under what was normally a lawful activity such as changing a baby’s diaper, bathing a child, or a doctor performing a medical procedure. In Criminal Sexual Conduct cases the prosecution must prove beyond a reasonable doubt that the penetration was for a sexual purpose.

March 13, 2012

Prostitution

by Hilf & Hilf, PLC

In Michigan, there are a number of crimes related to Prostitution:

Engaging or Offering to Engage Services of Female (MCL 750.449a) provides that any male person who engages or offers to engage the services of a female person, not his wife, for the purpose of prostitution, lewdness, or assignation, by the payment of money or other forms of consideration, is guilty of a misdemeanor. Prostitution is not limited to sexual intercourse, and applies to a number of sexual acts. The penalty for this offense is a misdemeanor conviction that carries a possible jail sentence of up to 90 days or a maximum fine of $500, or both. This particular offense does not require registration as a sex offender under the Michigan Sex Offenders Registration Act. The possible penalty, if an automobile is involved, is vehicle forfeiture. The exception to this statute is that it does not apply to a police officer in the performance of his or her duties pursuant to MCL 750.451a. This offense is charged as either a local ordinance or under state law.

Some local communities and cities have a mandatory minimum sentence upon conviction. In Detroit, for example, this offense is prosecuted under a local ordinance that provides for a jail term upon conviction. An experienced criminal defense lawyer is often able to overcome this harsh result.