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Common Questions Regarding Criminal Defense and Juvenile Law
Q: My friend was arrested and the police did not read him his Miranda rights. Can the arrest be dismissed because the police failed to read his
Miranda rights?
A: No. The police are not required to read an arrested person Miranda rights unless the police are also attempting to elicit a confession and even then, the matter would not necessarily be dismissed but your friend’s confession prior to the reading of his Miranda rights would be suppressed and not permitted to be told at a trial.
Q: What is the typical court procedure if I am being charged with a felony?
A: A felony usually involves the following court appearances: 1) The arraignment in district court whereby the judge reads the charges against the defendant and asks whether the defendant wants a court appointed attorney or will retain his or her own attorney and a bond is set by the judge; 2) Within 14 days from the arraignment the court will schedule a preliminary examination and the defendant must appear. The purpose of the preliminary exam is to determine whether there is probable cause (whether it is likely) that a crime was committed and the defendant committed the crime. The preliminary examination is much like a trial but it does not establish whether the defendant is guilty or not guilty, but only if it is likely that the defendant committed the alleged crime. Most of the time a district court judge will find it is likely the defendant committed the alleged crime and send the matter to circuit court which has jurisdiction to hear felony cases; 3) Within a month or so the defendant must appear in circuit court for a pre-trial conference. It is at this time your attorney meets with the circuit court prosecutor and depending on the facts of the case can offer the defendant a plea bargain, which may reduce the charges or cap the sentence or provide for probation. If the defendant avails himself to the plea bargain then the defendant must confess his crime to the judge. If the defendant chooses not to avail herself to the plea bargain the matter will be set for a trial; 4) If a trial results in a not guilty plea then the matter is dismissed but if the defendant avails himself to a plea bargain or is found guilty at trial then the next step is sentencing which will occur about a month after the guilty plea or trial conviction.
Q: I was convicted of a felony crime 6 years ago and I heard I can get it erased from my record. Is that true?
A: Yes, depending on the felony crime and if at least 5 years have passed and there are no other convictions on your record it may be possible to set aside the conviction so that you have no criminal record. MCR 3.925(F) Setting Aside Adjudications and Convictions. (1) Adjudications. The setting aside of juvenile adjudications is governed by MCL 712A.18e. (2) Adult Convictions. The court may only set aside a conviction as provided by MCL 780.621 et seq. You should consult an attorney regarding how this is to be done.
Q: Why are some people sentenced to more time in jail or prison when both committed the same type of crime?
A: The sentencing court considers many factors which can result in one person receiving probation and another person receiving prison time even though they are both guilty of the same type of crime. The biggest factor in the difference in sentencing is whether the defendant has a previous criminal record.
Q: My friend pled guilty to a felony and wants to appeal, what do you think the chances are of having it heard by the Michigan Supreme Court?
A: Probably not good. If your friend was convicted by a trial she would have a right to appeal to the Michigan Court of Appeals and then possibly to the Michigan Supreme Court. Since your friend was convicted by a plea, the appellate court may simply choose not to hear the appeal, unless the circuit court somehow really screwed up, and they rarely do.
Q: My friend was convicted and got probation but has not done some things ordered by the probation department and now has a court hearing for a probation violation. Is this a serious matter?
A: Yes, it is most serious. The consequence of violating probation may result in your friend being sentenced on the original charge he pled to and could result in a jail or prison sentence. One judge often stated that probation was like “grace”. The defendant should have been placed in jail or prison but was instead given a chance to not be incarcerated provided he or she follow the probation rules. Any person with a probation violation should retain a lawyer.
Q: I was drinking at home when my girlfriend called from a bar and said she was drunk. I agreed to drive her home. Before I got to the bar, I got pulled over for weaving and I was arrested for drunk driving. This is my first offense and my blood alcohol level was .10. I spent the night in jail and my car was towed. What can I expect in court?
A: It is usually a four part process: 1) You will be arraigned in district court and a plea of not guilty will be entered. You will then be asked by the Judge whether you want to retain your own attorney or have a court appointed attorney, bond will be set and the matter will be scheduled for a pre-trial, 2) the pre-trial is the opportunity for your attorney to speak with the prosecutor and perhaps a plea bargain will take place, and if so: 3) you will most likely have a pre-sentence interview with the probation department and they will recommend a sentence to the judge and 4) you will have a sentencing date.
Under Michigan law, it is illegal to drive while intoxicated, or impaired, by alcohol, illegal
drugs, and some prescribed medications with a bodily alcohol content of 0.08 or more. A
bodily alcohol content of 0.17 or more is a very serious driving offense. Additionally, if you
are under age 21, it is also against the law to drive with any presence of alcohol in your
body.
For possible penalties and jail time click on: Substance Abuse and Driving. If you had refused the breath test then you would automatically lose your license to drive for a lengthy period. Click on: Implied Consent. Never refuse a breath test or your license will be automatically revoked for a year. You need a lawyer to represent you. A lawyer will most likely not get the entire matter dismissed but should be able to lower the offense, including potential jail/prison time, driver license points and costs. How many drinks does it take to get “buzzed”? Click on: B.R.A.D. for general information. I hope your girlfriend got home safely. Click on: MAST to see if you have a drinking problem.
Q: Is it better to take a plea bargain or always go to trial?
A: Sometimes it is better to take a plea bargain rather than go to trial. Often, but not always, the prosecutor will offer a lesser criminal offense and dismiss the original charge and/or reduce potential jail or prison sentencing in exchange for a plea. If the evidence against the defendant is strong then it is wiser to take a plea bargain rather than risk a trial where the defendant could be found guilty of all the original charge(s) and/or no sentencing guarantees. Most criminal cases (with the exception of murder) do not go to trial and are plea-bargained.
Q: My brother committed a crime in Macomb County and the evidence against him is overwhelming, yet he cannot confess to the crime or tell the Judge that he did it. He always makes excuses and never blames himself for anything he does. Does this mean we have to give up a good plea bargain and go to trial because he won’t admit his crime to the Judge?
A: Not necessarily. He may be able to accept the plea bargain and not confess to the crime under a “no contest.” plea. A “no contest” plea serves as a guilty plea but your brother does not have to admit to doing anything wrong. The Judge reads into the record the police report which establishes his criminal behavior. This type of plea is often used if the defendant has no memory of the event and/or to protect him from potential civil liability which could stem from the criminal case.
Q: I was looking out my backyard window and saw someone in my boat. I called the police. Then I noticed that it was my no-good husband. He had been out drinking with friends and rather than come into the house and hear my outrage he decided to sleep in the boat. The police arrived and I told them everything was ok, and that it was only my husband in the boat. My husband saw the police pull up and exited the boat and identified himself. The police wanted to check it out anyway and opened the backyard gate and went into the boat and searched it. They found a small amount of cocaine and charged my husband with it. Can the police do that?
A: Actually, no. You, nor your husband, gave permission to the police to search the boat nor did you give them permission to be in your backyard. There was no search warrant and no probable cause that a crime had been committed. You should consult a lawyer to file a motion to suppress the evidence (the cocaine) and if the Judge grants it, the case against your “no-good” husband will be dismissed.
The answers given above are intended to give you general guidance but it is always necessary to consult an attorney regarding your specific circumstances.