Michigan Criminal Attorneys Blog

February 20, 2013

Is it possible to be sentenced to a HYTA prison sentence and participate in the MDOC SAI Boot Camp for the same offense?

In Michigan a Defendant sentenced under the Holmes Youthful Trainee Act (HYTA) is potentially subject to probation, probation with a jail sentence,or a prison sentence. If the Defendant is sentenced to prison under HYTA, he or she can be sentenced to a flat prison sentence of up to 3 years. The benefits of HYTA prison are that the offense becomes a nonpublic record, and the Defendant can truthfully tell employers, schools, and others that he or she does not have a felony conviction for the offense or offenses for which he or she received HYTA. Also, as a HYTA prisoner, the Defendant is not subject to the discretion of the parole board for release and is not subject to parole conditions or supervision upon release.

Unfortunately, a Defendant that receives HYTA prison is not eligible to participate in the MDOC SAI Boot Camp program. The basis for this is how the HYTA statute is written. The main benefit of the MDOC SAI Boot Camp is that if a Defendant is placed in this program, and successfully completes the program along with an aftercare component, he or she is placed on parole. The MDOC SAI Boot Camp program itself is 90 days long once the Defendant is placed in the program. There may be a delay for the Defendant to be placed in the program based upon the prison quarantine process and for MDOC compliance with the Michigan Crime Victim’s Rights Act. A benefit of a MDOC SAI Boot Camp sentence over HYTA prison is that the Defendant may end up serving far less time in prison under the MDOC SAI Boot Camp program depending upon his or her individual circumstances. Not all Defendants are eligible for the MDOC SAI Boot Camp program. Also, the sentencing Judge must have no objection to MDOC SAI Boot Camp placement.

For all criminal law issues it is important to retain the services of an experienced criminal defense lawyer, such as Daniel Hilf of the law firm of Hilf & Hilf, PLC.

February 18, 2013

Michigan to Allow Driver’s Licenses for DACA (Deferred Action for Childhood Arrivals) Participants

by Hilf & Hilf, PLC

Michigan Secretary of State Ruth Johnson has decided to allow the issuance of Michigan Driver’s licenses and State IDs for DACA participants, beginning on February 19, 2013. Previously, Michigan was among a small number of States to resist allowing this to occur. Ruth Johnson, a Republican, changed her mind recently after the Obama administration clarified its legal position.

In order to meet the eligibility requirements for Deferred Action for Childhood Arrivals (DACA) all of the following must apply to the individual:

1. Must have entered the United States prior to his or her 16th birthday;

January 28, 2013

EB-5 Due Diligence Questions

by Hilf & Hilf, PLC

There are hundreds of EB-5 Regional Centers approved by the USCIS, however the approval is not an endorsement that the investment itself is sound or that participation will lead to an I-526 and I-829 approval. It is wise for the investor to remember that the lawyer that he or she employs cannot give investment advice, and that it is prudent to consult with both a financial adviser as well as an experienced immigration lawyer before making any decisions as to investing in a particular EB-5 Regional Center. The following are a list of questions that are important to contemplate before trusting you money and future with an EB-5 Regional Center:

1. What is the record for I-526 approvals and I-526 denials received by the Regional Center? For denials, what is the reason or reasons for the denial?

The number of I-526 approvals and I-526 denials is a good indicator (but not the only indicator) as to whether or not a particular Regional Center is worthy of consideration. Other indicators can be discussed with experienced immigration lawyers, such as the lawyers at Hilf & Hilf, PLC.

January 25, 2013

Miranda Rights

by Hilf & Hilf, PLC

The typical Miranda Warnings read by a police officer when an individual is placed into custody include:

You have the right to remain silent;
Anything you say or do may be used against you in a Court of law;

November 19, 2012

Reduced Prison Sentences for Illegal Aliens

by Hilf & Hilf, PLC

In Michigan, pursuant to Michigan Compiled Law 791.234b, a prisoner who has a final order of deportation against him or her by the United States Immigration and Naturalization Service may be paroled after serving at least 1/2 of the minimum sentence imposed by the Court. Persons who have been convicted of first degree homicide, second degree homicide, first degree criminal sexual conduct, second degree criminal sexual conduct, third degree criminal sexual conduct, and/or as a habitual offender are not eligible for this relief.

The parole board will not place a prisoner on parole under this section of the law unless it received from the United States immigration and naturalization service assurances that an order of deportation will be executed or proceedings will promptly commence for purposes of deportation upon release from the Michigan Department of Corrections and that the person will not be released from custody for any reason other than deportation, unless the United States immigration and naturalization service provides to the Michigan Parole Board a reasonable opportunity to be returned to the Michigan Department of Corrections.

A prisoner granted this relief will be placed on parole for a period equal to the remaining balance of his or her maximum sentence. If the prisoner returns illegally to the United States at any time prior than the expiration of the maximum term of parole, a warrant shall be issued to apprehend the individual and the individual’s parole shall be revoked. A prisoner returned under this provision of the law is not eligible for parole or any other release from confinement during the remainder of his or her maximum sentence. Hence, the repercussions for illegally returning to the United States after being granted this benefit are potentially quite severe.

November 11, 2012

What is ETG Testing

by Hilf & Hilf, PLC

EtG (Ethyl Glucuronide) is a common urine test used by Courts to verify whether an individual on bond or probation has used alcohol in the past 3 to 5 days. EtG testing is usually performed at an outside agency which the Court deems reliable (such as JAMS, NOVA, DOTS, etc.). It is favored in many Courts in lieu of a breathalyzer test based upon how far back it can detect alcohol. A breathalyzer test or a blood test may only be able to detect alcohol for hours based upon the body’s rapid elimination of alcohol from the body. Alcohol is eliminated from the body at a rate of approximately 1 drink per hour.

The EtG test is used to document abstinence from alcohol, to detect relapse, and to screen for drinking problems. Although the EtG test is deemed to be very reliable, there are instances of false positive tests due to a person’s exposure (as opposed to consumption) to alcohol through household cleaning and personal hygiene products. Incidental exposure to vanilla extract can also produce EtG concentrations in excess of 100 ng/ml. Testing that has occurred on cleaning, personal hygiene, and food products to determine incidental or unintentional exposure to alcohol has never produced a positive EtG level greater than 500 ng/ml, and this is sometimes used as a cut off level for Courts.

EtG can also be tested in hair and nails, with a window of detection of 3 months. The bleaching of hair and chlorine exposure may reduce or eliminate EtG presence in hair. However, EtG urine testing is far more commonly used by Courts.

November 10, 2012

Violation of Probation for Use of Drugs or Alcohol

by Hilf & Hilf, PLC

A very common violation of probation allegation in Michigan and elsewhere is for using or testing positive for drugs or alcohol while on probation. The punishment for drug or alcohol related violation of probation can include one or a combination of any of the following: no sanction; added conditions of probation such as increased drug/alcohol testing, drug treatment, AA/NA meeting attendance, community service, etc.; extending the term of probation; requiring Adult Treatment Court program participation (if the Court has an Adult Treatment Court program); incarceration of various lengths up to the maximum allowable sentence that can be imposed.

Judges differ in philosophy in terms of how they view a positive drug or alcohol test. Some Judges view a relapse, or relapses, as a part of recovery and may be willing to invest additional resources into the probationer to address the drug and/or alcohol problem. Other Judges have a no tolerance view of a positive drug or alcohol test, and want their reputation of strictness to deter a probationer, and others, from use. There are Judges that combine these philosophies and balance rehabilitation with punishment. A Court usually will eventually give up on a person who repeatedly violates their probation, and will usually choose to incarcerate the person.

There are circumstances in which a person will falsely test positive for drugs. A positive drug screen is often sent for additional analysis to confirm or negate the original test. Drug and alcohol testing is viewed as reliable by Courts, and it is often hard to overcome a positive test at a probation violation hearing. Reasons why someone might wrongfully test positive for drugs or alcohol include: the person tested positive for a valid prescription that he or she was taking; the person ingested a substance that could lead to a false positive such as poppy seeds, vanilla, or mouthwash; there was a human error regarding the testing procedures, etc. Any error in drug testing should be contested by an experienced criminal defense lawyer, such as Attorney Daniel Hilf.

November 8, 2012

Alien with Extraordinary Ability

by Hilf & Hilf, PLC

An alien with an extraordinary ability in the sciences, arts, education, business or athletics can petition for United States immigration benefits pursuant to the regulation at 8 C.F.R. 204.5(h)(3). The spouse and/or children of an alien with an extraordinary ability can also gain United States immigration benefits derivatively through the alien of extraordinary ability’s successful petition. Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of that field of endeavor. An that alien can establish sustained national or international acclaim through evidence of a one time achievement (that is, a major, internationally recognized award) can potentially satisfy this requirement. What constitutes a “sustained acclaim” and a “major, internationally recognized award” are discretionary issues which are often subject to the interpretation of the reviewing officer. Great advocacy is a necessity to properly argue these issues.

Absent the alien’s receipt of such an award, the regulation outlines ten criteria, at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary ability. The ten criteria are as follows:

1. Evidence of receipt of a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor;

November 5, 2012

Dog Owner Responsibility

by Hilf & Hilf, PLC

Responsible ownership of dogs, cats, and other pets is enforced by local communities. The standards of a particular city may vary from other communities, and it is up to the pet owner to make sure that he or she is in compliance with what is allowed. Some communities view the following as either a civil infraction (a non-criminal offense that subjects the owner to a fine), a criminal offense (usually a misdemeanor punishable by up to 93 days in jail), or in some instances what is illegal in one community is acceptable in another community.

1. No vicious dogs. However, in some communities and with some businesses it may be allowable to have a guard dog, and it is up to the dog owner to see what is lawful. A police dog or law enforcement dog may be trained to bite or exhibit certain aggressive characteristics.

2. No excessively barking dogs.

October 28, 2012

Parole in Michigan

by Hilf & Hilf, PLC

The Michigan Parole Board is comprised of a ten member board, with each member appointed by the director of the Michigan Department of Corrections (MDOC). The Parole Board meets regularly to review cases and decide whether or not to grant applications for parole.

Generally, in order to become eligible for parole, a felony offender must serve the minimum sentence with the MDOC. Exceptions to this requirement include persons that successfully complete the MDOC SAI prisoner boot camp and after care program, certain drug offenses, and individuals who are pardoned or whose sentence is commuted by the Governor. Prisoners serving only a non indeterminate sentence (sentences that don’t contain both a minimum and maximum sentence, such as prisoners serving time for a felony firearm conviction or an individual serving a HYTA prison sentence) are not subject to parole board review, and are released from custody for that particular offense once the sentence is served.

A prisoner who is serving a life sentence (except for first degree, felony murder, or another similar natural life offense) is interviewed by the Michigan Parole Board only after the prisoner has served either 10 or 15 years of their sentence, depending upon the date of the offense. After the initial Parole Board review, if the life offense prisoner is denied parole, the Parole Board is required to review the case at five year intervals. The Michigan Parole Board has the discretion to parole eligible life offense once the prisoner has served 10 or 15 years if the sentencing Judge does not object. Parole eligible life offenders require a public hearing, input form the victim (if available), and vote of the entire Michigan Parole Board. In most other cases, the Michigan Parole Board decides the fate of a particular parole applicant by a panel of 3 Michigan Parole Board members.