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In general, a “misdemeanor” is a criminal offense that is punishable by a maximum amount of jail time one (1) year or less in the county jail, in addition to probation, fines, court costs and other various sanctions. A well known example of a common misdemeanor offense is drunk driving (OWI), which is a 93 day misdemeanor.
However, many attorneys are not knowledgeable or experienced enough to know that in Michigan there are also specific misdemeanor offenses that are punishable by more than one (1) year in jail, and these are defined by statute as “high court” misdemeanors. An example of a high court misdemeanor is Resisting/Obstructing a Police Officer, which is punishable up to two (2) years in the state prison, but it is not defined as a “felony” under Michigan law. Although high-court misdemeanors are handled by courts in Michigan procedurally like a felony, they are not a felony offense. This is significant when a criminal defense attorney is defending your case, especially when calculating “sentencing guidelines.”
Procedurally all misdemeanor cases begin with the actual arrest or charge for the particular offense, followed by a serious of mandatory court appearances in the Municipal or District Court in the city or township where you are being charged. These court appearances begin with an Arraignment, followed by a Pre-Trial Conference, and ultimately Trial. The only exception is high court misdemeanors which procedurally are akin to felony cases, as stated above.
A “felony” is a criminal offense that is punishable by over one (1) year in the state prison, in addition to probation, parole, fines, court costs and other various sanctions. A felony is the most serious criminal offense you can be charged with, and examples of felony charges include a variety of criminal offenses from murder, to rape (known as “criminal sexual conduct” or “CSC” in Michigan), to possession of certain drugs such as cocaine or heroine, or even drunk driving third offense.
Procedurally felony cases are much more complex than misdemeanor cases. A felony case begins with the actual arrest for the particular offense, followed by a serious of mandatory court appearances beginning with an Arraignment and a Preliminary Examination in the District Court for the city or township of the county where you are being charged. If a criminal case is “bound-over” from the District Court after a Preliminary Examination is held or waived, the matter then proceeds to the Circuit Court for the county where the offense occurred for an Arraignment on Information, followed by a Pre-Trial Conference, and ultimately Trial.
Having the proper legal representation on a felony charge is of paramount importance because with every felony charge there is the very real possibility of a jail or prison sentence being imposed against you if you are found guilty, in addition to various other severe penalties depending on the crime. Criminal defense in felony case requires your defense attorney to have an intimate knowledge of the law and the criminal justice system in the county where you are being prosecuted.
Whether you are charges with a misdemeanor or felony charge, it is extremely important that you immediately retain an experienced criminal defense attorney immediately following your arrest to appear with you at all court dates, to issue “discovery” demands to the prosecutor’s office for all of the evidence that will be used against you at trial, and to issue subpoenas, if necessary, for additional evidence or information from police and other agencies that may assist in the defense of your case. Obtaining this information is extremely time sensitive, and it is essential to insure the proper defense of your case.
When you are charged with any criminal offense you require immediate and experienced legal representation. There are certain courts in Michigan that will not hesitate to impose jail time against you, even if you are a first time drunk driving offender with no prior criminal history whatsoever. It is our belief that when you are being charged with a misdemeanor or felony crime, and you are faced with the potential penalty of jail or prison time, you MUST retain an attorney that will fight for you and protect your rights vigorously and aggressively.
The attorneys at Canu, Torrice, PLLC are all experienced criminal defense attorneys that are in court defending clients against criminal prosecution on misdemeanor and felony offenses every day. Quite simply, criminal defense is the backbone of our law firm, and we have built our practice on referrals from other satisfied clients due to our impeccable reputation as aggressive and seasoned criminal defense attorneys. Do not place your freedom in the hands of an unqualified attorney or some unknown public defender who lacks sufficient knowledge of the criminal justice system in Michigan, or that will not devote the time or effort necessary to protect your rights and defend you from over-zealous prosecutors and judges who believe jail time is always the best answer.
Call the attorneys at Canu, Torrice, PLLC, 24 hours a day, 7 days a week at (586) 285-1700 for your free consultation on any criminal matter.
CRIMINAL PROCEDURE AND YOUR RIGHTS
Both the criminal process and the criminal justice system are extremely intimidating, complex and confusing. It is not only important to know your legal rights, but also to contact an experienced criminal defense attorney at the first available opportunity after you are arrested.
When you are arrested or charged with any criminal offense, you have an absolute Constitutional right to remain silent and refuse to talk to police, and you have the right to have an attorney represent you and be present during any and all questioning by the police. It is important to know that exercising your Constitutional rights can never be used against you in the prosecution of your case. Immediately after you are arrested, you should always invoke your right to remain silent and to have an attorney present during any questioning. In short, never talk to the police about your case after you are arrested without an attorney present. Remember, your refusal to talk to law enforcement officials is not a challenge to law enforcement or their authority; it is merely an exercise of your Constitutional rights that must be respected and honored in Michigan and in every state throughout the United States. Under no circumstances should you ever talk to the police about your arrest or the facts of your case without an attorney present, even if you are completely innocent of the charges against you.
In order to protect your Constitutional rights, we advise every potential client to contact our office at the first available opportunity. Once we are retained on your case, you can rest assured that our law firm will take charge and control of every aspect of your case from the moment we are retained forward, and your Constitutional rights will be vigorously defended. For your convenience, our attorneys are available 24 hours a day, 7 days a week at (586) 285-1700 for immediate representation on criminal matters.
The following is a general outline of basic criminal procedure and some of your many Constitutional rights in criminal cases.
Police Questioning and Police Stops
You may be stopped for questioning by the police for a variety of reasons, although stops of a motor vehicle may only occur for a reason, such as you committing a traffic offense like speeding. A stop by police is not the same as an arrest, however, because although you may be briefly detained, you are not moved to a different location. During a stop the police officer may ask you questions, but you have the right to refuse to answer those questions.
Searches and Seizures
A search warrant is a court order signed by a judge that authorizes police to conduct a search of a specific, place such as your residence. In order for a warrant to be issued by a judge, “probable cause” is necessary.
Probable cause to search means that:
It is more likely than not that the specific items to be searched for are connected with criminal activities
- Those items will be found in the place to be searched
Warrant less Searches
The general rule is that warrants are required for searches and seizures of persons and property under the 4th Amendment. But there are several exceptions to the warrant requirement, especially when the search occurs after the stop of a motor vehicle.
The following is a brief and non-exclusive outline of circumstances when search warrants are not required:
- Searches incident to arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest, such as an arrest for drunk driving (OWI).
- Automobile searches: If you’re arrested in a vehicle, the police may search the inside of the vehicle, including areas like passenger compartments such as the hatchback area of a station wagon or an SUV. However, in general, before police may perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is required.
- Exigent circumstances: Searches also may be conducted if there are “exigent circumstances” which demand immediate action, such as to avoid the destruction of evidence.
- Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view. This “plain view” exception most often arises when police view what is clearly contraband, such as a bag of suspected narcotics or a weapon.
- Consent: If you give permission or otherwise consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. Remember, you are not required to consent to any police searches and you may always refuse to allow police to search your vehicle, your home, or your person.
Arrest
In order to be arrested, there must be what’s called “probable cause.” This means that there must be a reasonable belief that a crime was committed and you committed the crime. An arrest warrant is not necessary for police arrest you for a suspected crime, but they still must have probable cause to arrest you.
After you are placed under arrest, you are immediately and unconditionally protected by certain Constitutional rights. Two of the most important rights to be aware of are right to remain silent and the right to have an attorney. After your arrest, you are not required to say anything else to police or investigators, until you have an attorney present. You must be given the opportunity to contact an attorney.
Miranda Rule
Under the Miranda Rule, once you are in police custody you must be informed of specific constitutional rights before any interrogation or further police questioning begins. Those rights are as follows:
- The right to remain silent
- The right to have an attorney present during questioning
- The right to have an attorney appointed if you are unable to afford one
Important to note is that Miranda rights do not have to be read until you are taken into custody, and if police do not question or interrogate you, they do not have to be read at all. Many clients complain that they were never read their rights, but they fail to realize that this will not have any effect on the disposition of their case unless they were questioned or interrogated by police about the alleged crime without being read their Miranda rights. Since Miranda rights only come into play after you are arrested, it is important to know that you can be questioned by the police before being taken into custody, and anything you say at that point can be used against you later in court without being read your Miranda rights.
Booking
After you are arrested, the police will bring you to the police station for the booking process. You will be fingerprinted and asked a series of questions, such as your name and date of birth. You will also be searched and photographed. Your personal property such as jewelry will be catalogued and stored.
Appointment of an Attorney
In Michigan, if you cannot afford to hire an attorney, an attorney will be appointed to defend you. This means a public defender will be appointed as your attorney. A public defender is not an attorney of your choosing, and you will have no say in what attorney is appointed to represent you. (Note: Although there are many good public defenders, there are also many public defenders that will not spend the time or the effort you deserve to represent you in your case. The right to have an attorney appointed to represent you does not mean that you have the right to a good attorney, rather just an attorney the court appoints. Instead of leaving your freedom and Constitutional rights to chance, at this law firm we always encourages criminal defendants to hire an experienced and qualified criminal defense attorney, such as any attorney from CT LAW).
Once a public defender has been appointed to defend you, you may ask the court to appoint a substitute attorney only for good cause. Good cause requires more than mere dissatisfaction with your court appointed attorney and may include:
A conflict of interest between you and the attorney
Your attorney becomes ill and cannot continue to represent you
There is reason to believe that your attorney is not providing effective assistance.
Most of the time if you do not hire your own attorney, the court will not allow you to substitute your court appointed attorney unless it is a unique situation. You will be stuck with whoever is appointed to represent you absent extreme circumstances, whether you like it or not.
Arraignment
Once criminal charges are filed, you’ll make a court appearance which is known as an “arraignment.” If you are incarcerated, this will usually occur within 72 hours following your arrest.
During your arraignment, you’ll be asked to enter a “plea” to the crime you’ve been charged with. Michigan pleas and corresponding definitions are as follows:
“Guilty” plea: If you plead “guilty,” you are admitting to the facts of the crime and the fact that you were the one who committed that crime. (We strongly encourage you to never enter a plea of guilty without discussing the case with an attorney first. Even if you are guilty and want to admit to the crime, stand “mute” at your arraignment and speak to an attorney before you enter a plea).
“Not guilty” plea: A “not guilty” plea asserts that you did not commit the crime that is being alleged against you. After your plea of not guilty, a Pre-Trial Conference, Preliminary Examination, or a Trial date will be set by the court.
“No contest” plea: A “no contest” plea indicates that, while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea because guilty pleas can be used against you in subsequent legal proceedings such as later civil lawsuits. However, it is important to know that a court treats a no contest plea the same as a guilty plea for sentencing purposes, and thus never enter a plea of no contest without discussing the case with an attorney first. Also, as a general rule courts will only accept a no contest plea in certain situations, such as potential civil liability,
“Stand Mute” plea: In Michigan, you may “stand mute” instead of making a plea. The court will then enter a plea of not guilty on your behalf. By standing mute, you avoid silently admitting to the correctness of the proceedings against you until that point. You are then free to attack all previous proceedings that may have been irregular. Standing mute is treated procedurally the same as entering a plea of not guilty.
If you plead “guilty” or “no contest,” there will not be a trial. You will then be sentenced by the court without the benefit of an attorney. Once again, we strongly encourage you to never plea guilty or no contest at your arraignment under any circumstance without first discussing your case with an attorney.
During the arraignment, the court will also:
Set the terms of a bond, or bail as it is sometimes called;
Refuse to set a bond or bail; or
Release you on your own personal recognizance, or a “personal bond,” which means that the court takes your word that you will appear when necessary for later court appearances and obligations
Bail/Bond
Bond is the terms of your release pending your next court date and can include conditions like having no contact with a complaining witness, submitting to drug or alcohol testing, or sometimes being screened for possible substance abuse issues. “Bail” is the amount of money or property put forth as security to ensure that you will show up for further court dates and criminal proceedings.
In Michigan, bail can be paid:
In cash
A pledge of property (if permitted in that court)
Through bail bondsman
A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court. There is a fee associated with using a bail bondsman, usually 10% of the amount being posted on your behalf, but that amount can vary.
Speedy Trial
You have a right to a speedy trial under the 6th Amendment of the United States
Constitution, which requires that the trial be held within a certain time frame after a person has been charged with a crime.
This right can be waived by asking for additional time for the preparation of your defense.
Speedy Trial Rights in Michigan
With limited exceptions, a defendant should be brought to trial in Michigan within 180 days.
Trial
Many prosecutors will consider “plea agreements,” although it is not legally required. This is how most cases in the criminal justice system are disposed of prior to trial. An experienced criminal defense attorney can almost always negotiate a “plea agreement” on your behalf. If you do not reach a plea agreement with the prosecutor, your proceedings will move toward the trial stage.
Usually, if you are charged with a crime punishable by imprisonment, you have the right to a jury trial. This right may be waived by:
Pleading guilty; or
Choosing a bench trial (a trial in front of a judge only)
In Michigan, except in minor cases, you must have the prosecutor’s consent and the court’s approval in order to waive a jury trial in favor of a bench trial. If you request a bench trial, the judge will perform the fact-finding function that is usually performed by the jury.
Appeals
If you are found guilty after a trial, you are entitled to an appeals process. This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal.
In Michigan, you generally have 42 days from the judgment to file an appeal.
There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what’s called “legal error.” Legal error may include:
Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights
Lack of sufficient evidence to support a verdict of guilty
Mistakes in the judge’s instructions to the jury regarding your case
You may also appeal due to misconduct on behalf of the jurors, or if there is newly discovered evidence to exonerate you.
In Michigan, appeals from the District Court are heard in the Circuit Court for the county where the trial occurred. Appeals from a Circuit Court or Probate Court order are heard in the Michigan Court of Appeals. Appeals from Court of Appeals decisions are heard in the Michigan Supreme Court.
There are three kinds of appeals:
Interlocutory appeal: occurs when a party appeals a judge’s decision before the case has come to trial or before a trial is finished.
Appeal of right: occurs after a final order has been entered by the trial court. A recent amendment to the Michigan Constitution has eliminated most appeals of right when a defendant pleads guilty. Most appeals of right now focus on the sentence imposed.
Appeal by leave of the court: occurs when an appeal of right is not available (e.g., because it was not filed on time). The appellate court can reject the appeal or can “grant leave” at its discretion
Expungement
In Michigan, under some circumstances, you may be able to have a criminal conviction expunged (set aside), which means that the record cannot generally be accessed or used. (See our section on Expungement on this web site).
JUVENILE CRIMINAL LAW
At Canu, Torrice, PLLC we represent juvenile defendants and their families in the Michigan juvenile justice system. The juvenile justice system is intimidating and complicated, and like adult criminal case requires proper representation by an experienced criminal defense attorney. If you or your child is facing a proceeding in the juvenile court, you require immediate representation. If you have any questions about juvenile delinquency, abuse and neglect proceedings, certification hearings, detention hearings, stipulations, or anything else related to Michigan’s juvenile justice system please our law firm 24 hours a day, 7 days a week at (586) 285-1700 for a free consultation.
The criminal justice system in Michigan recognizes the difference between criminal offenses and delinquency of children and the criminal conduct of adults. Although many of the offenses for which children and young adults under the age of 16 are charged are similar to adult crimes, ranging from traffic misdemeanors to serious felonies, the procedure in which these cases are handled by the court system is quite different. When a juvenile is accused of a crime in Michigan the legal process is very different than in adult court. The juvenile crime is called an act of delinquency and requires juvenile court to process the case. Despite the stated philosophy that juvenile courts in Michigan are designed to foster the positive development of wayward youth in need of care and guidance, and to serve the “best interest” of the child, the juvenile court today is for all practical purposes a criminal court with little focus on rehabilitation or the needs of children or their family.
