I work with many clients each year that have weapons confiscated at the airport while trying to pass through security.  Most would hear this type of story and think of terrorism or federal offenses.  Many are surprised to hear that these type of cases are actually handled locally at a district court right near the airport.  If you possess a dangerous weapon (firearm, knife, brass knuckles etc) in your luggage or on your person at security, you will be pulled aside and further investigated.  There is always times when these cases could be prosecuted at the federal level, but many are in the category of innocent, but technical violations of the law. 

If security believes that the "dangerous weapon" was left in your luggage because you forgot about or another innocent reason, it's very likely you will be ticketed, the weapon will be confiscated and you will be on your way.  You will leave with a ticket to appear at the district court to face criminal charges, but it could have been a lot worse and a lot more serious.  

A criminal misdemeanor in Michigan for a dangerous weapon is still a criminal offense and must be taken seriously.  Depending on your past history, your present place in life and your future goals, you case could be a candidate for resolution with the prosecutor at the 34th District Court.  Wayne County has a specific prosecutor who only handles DTW Airport cases, and he is a reasonable person to work with.  

Once we are able to tell your side of the story, and do a number of proactive steps to display your willingness to learn from this lapse in judgment and irresponsible behavior on your past, a path to resolution becomes likely.  Common goals for this type of case may be: avoiding jail, opportunity for dismissal of charges, freedom to reside or travel outside of Michigan if you're not a resident of Michigan or even if you are, but travel for work or pleasure.  

This type of case is a difficult situation and the facts and circumstances are stacked against you, but there is a reasonable outcome to work towards, and potential outcomes are a lot more favorable than you believe - it all comes down to your willingness to change the perception of your case from day one. ​

We can apply The New Rules of Criminal Defense by making a decision to compete in a strategic manner, and acknowledge that embezzlement is a serious allegation and charge in Michigan.  We need to adopt a growth mindset and get out of the box. 

When someone is charged with a felony such as embezzlement, the first thought is, how does this impact me? What will happen to your job, family, life? Stop playing the victim; this is not how to best approach a serious felony.  We need to acknowledge what happened, and make a decision to grow from this rather than sulk and feel bad for ourselves.  

To achieve the best outcome for an embezzlement case in Michigan, it means the best outcome both inside and outside the courtroom.  It means changing the culture of your case and adopting core values to bring real change.  Real change is not easy, and it requires intense stakeholder mapping, especially to the victim in the case. 

How can we make things right for them, but also work toward the best long-term outcome for you? Do not be tempted to turn this into you vs them; if you stole, you stole, own it, and move forward with a plan.  The prosecutor and judge are going to come down harder on someone isn't willing to acknowledge lapse in judgment. 

For embezzlement cases there may be inconsistences or numbers don't add up; those can be fixed and negotiated, but you have a choice if you want to be proactive; to apply the time value of money, and creation of a balance sheet, we can create measurable results to help us re-brand the case. 

This requires a unique client value chain for embezzlement cases; a mix of retribution and lesson learning.  ​

If faced with a probation violation in Michigan, are you ready to compete? I don't mind denying you did anything wrong or fighting the allegations simply because you're worried about the consequences.  The worst approach to a probation violation when you've actually violated is to deny you did anything wrong; there is no good outcome to deny; the judge will just find you in violation and the outcome will be worse.

You can take a growth mindset and learn from the situation; take responsibility for your actions and get yourself out of the box; the box you find yourself in is denial and fear of what happens if you're found in violation; you need to change the culture of your violation and bring complex change.

This is not easy, and you must identify all stakeholders and shareholders in your case; a balance sheet must be created of your liabilities, equity and the assets (if you wish to adopt the time value of money and the client value chain)

Each probation violation is different and requires its own approach, but there is a way to tackle a probation violation in a strategic way; any lawyer who advises to fight it just to fight it is setting his client up for failure; this would be like running into the battle field against a full army without a plan or the proper tools or weapons.  

All assets must be measured and shared with the judge and the probation department; with the right approach, it's very likely we can rebrand the violation, and turn a negative into an additional growth opportunity and look to avoid some of the worse consequences of a VOP allegation and violation. 

If you've violated probation, don't run from it! Embrace it and have a plan; the stakeholders in your case are ready to work with you if you approach the matter with a growth mindset and avoid the fixed mindset. ​

We can apply The New Rules of Criminal Defense by making a decision to compete in a strategic manner, and acknowledge that careless, reckless and leaving the scene of an accident are serious allegations.  Some people assume because it's a "traffic ticket" that its somehow not a criminal charge or something that should be treated that way.

Leaving the scene and reckless driving are both misdemeanors which will give you a criminal record, carry 6 points and Reckless driving will suspend you license for multiple months, worse than a standard DUI.  

People get into traffic incidents for different reasons, and it's natural to blame the other driver, the road conditions or minimize what you did; to take this approach would be a fixed mindset and the client is stuck in the box of being the victim; that somehow being charged with a crime they are owed something or should benefit in some way.  

From the stakeholders in the case, this is not true, and when a case begins to take that type of mindset is not going to yield the best results.  To adopt a growth mindset, assess the situation as someone outside the box and realize that the offense is a whole lot bigger than just you.  

We need to change the culture around the case and adopt core values; the prosecutor, judge and probation take their own worst experience on the road with another driver and put that on you as the person charged; it's human nature to not give you the benefit of the doubt. 

Complex change on this type of case is not easy, but if we can turn the stakeholders into shareholders who will support working toward our goals then we have achieved our goal. A client balance sheet is key in these type of offenses; it answers the question "what's in your wallet" as in how have you lived the last X years on earth and as a driver.  Are you someone with a clean record or someone with a list of traffic offenses?

Are you will to adopt the client value chain and build assets on your case; do you understand the importance of the time value of money, and how doing things in the present have more impact than the future? If we are able to create measurable progress and results, we are able to reset, rebrand and earn rewards for your case. 

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When charged with Resisting Arrest in Michigan, we can apply The New Rules of Criminal Defense we need to apply a strategic approach; a series of steps to position our case with the stakeholders as we take a growth mindset approach.

We need to get out of the box and realize that you're not the victim; being charged with a crime is stressful, you're job and life are in flux and could be impacted, and you're afraid of jail time, but you are NOT the victim.  To feel sorry for yourself would be to take a fixed mindset, and it is not productive.  

We need to change the culture of the case and adopt core values as we work toward complex change.  This requires identifying the stakeholders in the case, and for resisting arrest, more focus is put on the police officer, especially if an injury or assault happened.  A person charged with resisting arrest needs to realize that not only did you break the law, but now you're alleged to be resisting the law; a double whammy. 

We need to create a client balance sheet and adopt the time value of money theory as we get busy on our client value chain of proactive steps.  This progress needs to be measured and shared with the court, prosecutor and probation; we need buy-in from the police officer, and work to re-position the client's brand from a law breaker and resister to someone who is humble, and open to learning from the incident. ​

We can apply The New Rules of Criminal Defense by making a decision to compete in a strategic manner, and acknowledge that domestic violence is a serious allegation and charge in Michigan.  When charged, the truth does not initially matter; many people charged with domestic violence don't realize the low threshold in what counts as "violence".  

It's not productive to blame the other person, because in most cases DV cases do involve two sides fighting, yelling, pushing etc, but there is only one person charged.  To blame others and feel bad for yourself would be adopting a fixed mindset, and not a growth mindset. 

We need to get out of the box and realize that domestic violence is a huge deal in our society; we cannot adopt a victim mindset, because it doesn't play well with a prosecutor or judge; if you're completely innocent then you should still respect the allegation and charge, and take the case to trial. 

Most DV cases I handle, the client is either too focused on the reason for the argument, and not able to recognize their actions may feel justified, but it still broke the law.   A client may also not realize that pushing or shoving or intimidating actions could qualify as violence as most people think of violence as requiring an injury, punching, kicking etc.

We need to change the culture of a DV charge, and adopt core values as we work toward complex change of the circumstances.  We need to identify our stakeholders and shareholders with the victim being someone who will fit into both categories when a case begins.  

A client balance sheet will cover a client's past, present and contain all of the assets we are going to create in the client value chain.  When working on a DV case, there is likely a no contact order in place which may displace the client from the comfort of their home, but we will still adopt the time value of money and the client value chain.  

We need to measure success and rebrand the case; turn the case into a public assault case into a private matter between two people who care about each other, and work toward a non-public dismissal of charges.  ​

If you've received a letter in the mail regarding a court appearance over Zoom, do not worry.  This is the new standard in Michigan due to COVID, and lawyers are trained to help you.   It may be different than going into the courthouse, but the stakes are no less serious.  

If your case is set for arraignment, it's likely an attorney can waive the court date and set the case for a pretrial giving your lawyer time to work with the prosecutor and court on your case.  It's important to acquire the police reports, and begin a series of proactive steps on your case.  If you or someone you love is scheduled to appear via Zoom for court, give me a call at 248-924-9458 or email me jonathan@michiganlawgrad.com

Before being sentenced in Michigan, you must do through a pre-sentence interview with probation.  The intent is for the probation officer to meet with you, and put together a report for the judge.  If you fail to attend this meeting, it's very possible the court will issue a warrant for your arrest.  

If you have a valid reason, better yet a valid reason, which you can provide proof, you are likely to get an opportunity to reschedule, but that does not happen without fixing the problem.  The worst thing to do is to do nothing, because the court and judge do not know why you missed it, and will assume the worst.  

If you or someone you love has missed their PSI report, give me a call at 248-924-9458 or email me jonathan@michiganlawgrad.com 

Welcome new Judge Miriam Perry to the 15th District Court in Ann Arbor 

Miriam A. Perry currently serves as a clinical teaching fellow in the University of Michigan Law School’s Veterans Legal Clinic. Prior to the fellowship, Perry worked as an assistant public defender for Washtenaw County, representing clients in a wide range of criminal proceedings. She has also served as a judicial attorney for the 3rd Circuit Court of Wayne County and a law clerk for the United States District Court for the Eastern District of Michigan.

Perry is a member of the Black Women Lawyers Association, National Bar Association, Washtenaw County Bar Association, Women Lawyers Association, NAACP, and Ann Arbor Alumnae Chapter of Delta Sigma Theta Sorority, Inc. She holds a Bachelor of Arts in Economics from Spelman College and earned her Juris Doctor degree from the University of Michigan Law School. Miriam is a life-long resident of Ann Arbor.
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“I am humbled, honored, and grateful for the appointment to the 15th District Court,” Perry said. “My life’s work has revolved around serving people in this community. I am looking forward to helping ensure that a culture of fairness and impartiality exists for all people, in all cases.”

Congrats to Judge Erane Washington on being elected as new Judge for the 14B District Court in Ypsilanti Township

1. Being proactive makes your life less stressful, because you have a daily plan of alcohol testing, AA meetings, counseling sessions, community engagement, and other positive steps.  It's like being on a daily workout plan.  

2. You'll sleep better at night knowing that you spent 24 hours helping your case, and tomorrow is another day of positive steps in the right direction.

3. Your family and friends will see positive changes in your life.  Many clients have more energy, focus and drive when following a proactive plan.  

4. Achieving your goals as easier to handle day by day vs viewing the case as beginning and end.  There are steps in the middle, which 99 percent of the population ignores.

5. You'll be more confident walking into the court for the first time.  It's like preparing for an exam or a performance vs just showing up and winging it.  Which sounds like a better approach?

6. If placed on probation, it's going to be a lot easier to succeed, because you've been on a similar plan even before going to court.  You will be able to do many of the steps on your own terms, and be further ahead that others with a clear path to the finish line.

7. You won't need to use your GPS to get back on track.  Imagine you're looking for a restaurant or a store, and you take a wrong turn and end up back on the freeway.  You now need to go 2 miles to get off, and come back another 2 miles. Being proactive means making a quick u-turn and getting back on track without the frustration

8.  You will save money and a lot of time.  If a judge rewards you by making your terms and length of probation shorter, you save a lot of money.  Pretty simple. 

9. You will feel purpose in the case.  You wish you could go back in time and make this go away, but that's not possible.  Embrace it; this happened for a reason.  It has a purpose.  This is manageable; get over the anger, sadness and disappointment in yourself, and realize this happened for a reason; find the good in it.

10. I'll save this one for when you contact me ... 

Sarah reaches out to me over the weekend about a recent drunk driving arrest.  It is quite common for a client to be arrested on a Thursday, Friday or Saturday night and spend a night in jail before being released.  We apply the three step “A-R-T” method of review, which covers arrest, release, and tracking. 

For DUI’s in Michigan, most defendants are released either on a personal bond or a small cash bond; the exception would if the client has an extensive criminal record, especially prior drunk driving convictions.  Along with likely release, the Defendant is given bond conditions with the most common rule being no drugs or alcohol with mandatory testing. 

When a potential drunk driving client reaches out, it is important to get all the paperwork in their possession; there is a lot of valuable information to be gained.  We want to be sure that there is NOT an implied consent issue, which we will get more into, and the client must understand all of their bond conditions, their ability to drive a vehicle, and when court may be.  I also inquire about the status of their driver’s license, past criminal history, and if they hold a CDL or a CPL. 

We also want to dive into their professional life, and if they hold any professional licenses or any licensing by the State.  While most clients I work with are residents of Michigan, a decent portion of DUI clients are from out of state, or at a minimum have an out of state license.  It is important for a client to understand how an out of state or in-state license differ for their case, and their ability to drive. 

Along with gathering this background information, it is important for a client to layout their recollection of the what happened with the police; the information is most fresh immediately after the arrest.  The only issue with a DUI case is the alcohol and potential lack of memory or a false sense of what happened.  Some clients remember it all, some remember parts, some nothing, and some remember, either intentionally or unintentionally the wrong thing. 

After gathering background on Sarah, it turns out she is a schoolteacher in Michigan, has no prior criminal history, does not have a CDL or CPL, but tells me that she refused the breath test.  This last piece of information is extremely important for an attorney to know. Sarah also sends me copies of all her paperwork, which includes a ticket, a temporary license, refusal paperwork and an inventory of her property.  She also has paperwork with a TBD for her court date. 

I ask Sarah to walk me through her version of the arrest as I now have access to her paperwork and can begin to piece together the evening.  This will cover the ARREST portion of the A-R-T method.

Sarah tells me that she was speeding on a residential road with a speed limit of 35 MPH; she estimates she was going around 55 and was lost.  She had been out with work friends celebrating the end of the school year and was trying to find her way back to the freeway; while trying to find her way, she was pulled over by the police. 

Within the A-R-T approach, we also want to use three windows of inquiry.  The first thing we examine in an arrest is the reason for being pulled over, stopped by the police, or how the heck did you end up interacting with a police officer, and does it meet the legal standard in Michigan.

Here we have a traffic stop by a police officer; some cases involve accidents where a police officer arrives after the “driving”, a civilian may call 911, or a driver may be parked somewhere with the car not in motion.  A traffic stop like Sarah is the most common.  For a police officer in Michigan to make a traffic stop, the officer must have reasonable suspicion that the driver of the vehicle has committed a violation of the traffic code. 

Even if in the end the driver did not, the standard is a reasonable suspicion, not probable or beyond a reasonable doubt.  To challenge a traffic stop, it is an uphill battle which is helped if video is available that contradicts the officer’s reason.  Here we have speeding, and if the officer reasonable believed Sarah was speeding, the traffic stop is a good stop, and would unlikely be cause for inquiry. 

The good news for Sarah is speeding alone is NOT a basis for impaired or intoxicated driving; sober people speed all the time, but it is a reason to be pulled over.  Once on the side of the road, the officer will not interact with Sarah.  Under the law, Sarah is not required to speak or perform any tests for the officer; she must comply with providing her license, registration and insurance; her name is listed on this information, and she has the option of keeping her mouth closed and handing over this information.

That never happens, and clients are very chatty with the officer, because that officer is trained to elicit information and make observations to assist in determining if an arrest should be made.  This is now our second window of inquiry; once the stop is examined, we must now determine if the officer has probable cause to arrest the driver for a crime committed.  Speeding is not a crime, so an arrest cannot be made based on that observation. 

The officer will now make observations, elicit statements, and push for field sobriety tests to support the need for probable cause.  It means how it sounds, is it probable that Sarah in this case committed the crime of drunk driving, which requires operation of a motor vehicle, and either impairment or intoxication.  It is probable Sarah was driving as he pulled her over, there was only one person in the car, and Sarah admits to leaving a work party and getting lost. 

The probability of driving comes into question if an officer first observes the vehicle parked, on the side of the road etc.  The person may be inside or outside the vehicle, and a police officer and prosecutor need to lean more heavily on circumstantial evidence than in Sarah’s case.

So, let us move onto an examination of the impairment or intoxication of Sarah.  Speeding alone is not enough to arrest someone for drunk driving, but as Sarah continues to speak and exits the vehicle, the officer builds his case.  It should be noted that the officer does not need to offer Miranda warning at this point as it is still an ongoing roadside investigation; as long as evidence of a possible crime continues to present itself, the officer can carry-on. 

Only when Sarah is in police custody would statements, she makes be protected by the law.  In many cases drunk driving cases, the statements of the Defendant are not the main evidence; the main evidence is usually seeing the person driving and the chemical tests to follow. The one type of case where it may be more relevant is when a Defendant eventually admits to driving if there is not an independent eyewitness to the driving. 

While still inside the car, Sarah provides her information to the officer, and admits to leaving a restaurant with friends; she admits to having 2 mixed drinks, but she feels fine.  She admits she was lost and should not have been speeding, but she wanted to get home.

At this point an officer can ask Sarah to exit the vehicle.  The officer has evidence she was driving and had consumed alcohol prior to driving.  The officer will observe Sarah exit the vehicle and note any trouble exiting, leaning on the vehicle.  Officer is observing her speech and her appearance; common remarks are slurred speech, watery and red eyes; you see those in most reports by default. 

Once Sarah is out of the vehicle, the officer had her do three field sobriety tests; he performed the horizontal gaze nystagmus test, the walk-and-turn and the one-leg stand; those are the three recognized standardized tests; any tests outside of those are not standardized and should not be a basis of determining the arrest. 

Sarah believes she did OK on the tests but had sandals on and was nervous; I explain to her that its rare for anyone to do well on those tests and to not worry about it too much.  We will be able to get the officer’s report and review any associated audio and video from the tests.  While the field sobriety tests can be hit or miss, they are typically used as the basis of the arrest, and most judges would uphold the arrest if the officer followed protocol on the tests. 

Officers vary in how well they administrator the tests, and I have found the horizontal gaze nystagmus to be the most fruitful to challenge as officer’s rush the test and do it wrong.  The audio and video allow us to see and hear what happened; the video can be helpful for the other two, but sometimes they are performed off camera or it is hard to see the feet of my client. 

The most important part of the client being outside of the vehicle is whether they performed the Preliminary Breath Test or as it is referred to as the PBT.  Clients get confused about the different tests and if they need to take them.  Some officers push the PBT on the client and make them think they MUST take the test.  Technically by law you do need to take a PBT if an officer believes you were driving and drinking alcohol, but failure to do so is merely a civil infraction, punishable by a fine and 0 points.  For those under 21, there are 2 points attached. 

Either way, a PBT result for Sarah could make or break the officer’s ability to arrest her.  While the PBT is not admissible at trial, it can be used as a basis of arrest to examine the probable cause.  The PBT test is not deemed reliable enough to be used to determine guilty or innocence, but prosecutors use it as the main tool to uphold an officer’s decision to arrest.  In Sarah’s case, she agreed to take the PBT and the result was 0.14 which is over the legal limit. 

The one benefit of the PBT is if you believe you will pass, an officer may send you on your way if under the limit; he/she can still arrest you for being under the limit based on the totality of the evidence, but that case would certainly be open to scrutiny.  I believe the upside is low if you are not sure if you’ll pass; by being over the limit on the PBT, you’re going to be arrested, and the cop/prosecutor have very strong evidence of probable cause.  Based on what Sarah tells me, it sounds like the basis of arrest was there at the time. 

Finally, we move onto the post-arrest and additional chemical tests.  Sarah mentioned that she refused the test; when arrested for a DUI in Michigan, there is something called an implied consent, which means by law you must submit to breath or blood; failure to do so could result in 6 points and loss of license for a year.  The officer must follow protocol in this situation and make Sarah aware of these consequences and give her an opportunity to agree or refuse.

Sarah tells me that she remembers the officer reading those rights, but she was confused and was not sure; she felt it best not to take the test.  Some officers are better than others in helping clients understand that it is usually in their best interest to take the test, because the officer is going to get results one way or another.  By refusing it adds an automatic license suspension to your case.  As you will find a ton of information on my website and videos, an implied consent is not the end of the world; there are options, but it certainly complicates the case for Sarah. 

Because the officer had to get a warrant for blood, we do not know the result of the BAC and cannot determine what level of charge we will have (Impaired, Intoxicated or High BAC).  It is also why her court date is TBD because a date is unlikely to be set before the blood result is back.  This could take 10 days or 4 months, it depends on the capacity of the testing lab, how quickly the officer follows up etc. 

You can find many articles on my website about challenging breath and blood, but for purposes of this story, we are now going to focus on the Release and Tracking portion of the A-R-T. 

As mentioned above Sarah was released on bond by the court.  Without prior criminal history, she had to post $300 and promise to come to court when scheduled.  She received alcohol testing as a condition of her bond which she must call every morning to determine if its her random day.  Sarah must understand the conditions of her release, so she complies from day one.  The release portion of a case becomes more complicated when a client cannot post bond, or the judge holds the client to put a tether on their alcohol or some sort of monitoring.  Sarah’s release was straight forward, and she appears to understand her obligations.

An especially important part of Sarah’s case is now the tracking portion; I explain to Sarah that she may not have court for a few weeks, maybe even a month or two.  She can sit back and check her mailbox every day; she is likely to lose sleep, be anxious and miserable and she waits for the bomb in her box to show up.  This is not a healthy approach to a drunk driving case.  Not only is she out of the loop on information, she would waste valuable time doing nothing for her case.

I explain to Sarah that if we work together, we will get things filed with the court, police, and prosecutor; we want to preserve and request all evidence.  We do not want video and audio to be deleted or lost, and we want the police and prosecutor to know someone is working with Sarah and keeping her organized and informed.  We want to track the status of the blood result and be on top of any warrants or case updates.  It is our goal that no warrant for arrest goes into play, and we can simply ask the court to cancel any warrant, and/or waive any arraignment date.

It is our goal to know what is going on, and not to be afraid of the daily trip to the mailbox.  It is possible that Sarah misses something, a letter does not arrive, and she sits in limbo as the court begins looking for her; mail and notices get lost all the time.  It is better to have a professional tracking the case daily. 

Along with information, we want to maximize our time.  With a drunk driving case, we will need to overcome the perception that the client is a dangerous drunk driver.  It is likely not the first time the person was driving while drunk, but simply the first time they were caught.   If a potential client has prior DUI cases, then it is really an uphill battle for the client to overcome that perception. 

Our words mean truly little in court, our actions speak louder than anything we can say.  I explain to Sarah that if we work together, she would be expected to be proactive from day one.  This means likely obtaining a portable alcohol testing device; it would be our goal to test 2x daily and go above and beyond the testing put in place by the court.  We would want to change her testing as well, as the portable device will allow a much more convenient method and more dependable and comprehensive. 

If we want to change the perception of Sarah, testing 14 times a week, 13 more times than ordered is a good start.  We also want to be screened and assessed from a professional in substance abuse; get a basis of where we stand in the present and where we can go moving forward; we usually begin counseling and alcohol education and insight.  If a client has prior DUI’s, we usually push for intensive treatment, and begin to put in place jail alternatives. 

My DUI proactive program is really tailored specifically for each client, with the average client adopting 5 to 6 steps; this will vary by the court, judge, type of charge, prior history and what comes back on the substance abuse evaluation.

Sarah agrees that she wants to take control of her case.  She feels terrible about her choice that night; she knows it was NOT a mistake, but a choice.  She is motivated by the fact that she could make a positive impact on her case daily with my proactive plan.  The alternative sounds unproductive and frankly makes her anxious to think she would be waiting around for the case to smack her on the head.  She would lose valuable time and would feel very unprepared.

Sarah did not know that this type of approach was possible, but it makes so much sense to be on top of things, and if you want someone to believe in you, you need to earn that from the prosecutor and judge. 
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I explain to Sarah that if she follows my program and works hard, that she has a major opportunity to change the perception of her case with the prosecutor and judge, and work toward an exceptional result.

As a side note, the Implied Consent refusal must be addressed immediately by my office.  Failure to appeal this within 14 days would suspend her license for a year subject to the possibility of applying for a hardship license, which I cover in other writings.    Our proactive approach helps tremendously in this issue as well; it may take us into the Circuit Court before a judge who we must request to overturn a Secretary of State license suspension.  The weight of that decision should not be taken lightly by a judge, and we must provide the justification for that decision.  

Steve reaches out to me about an old felony case from his earlier days.  He tells me that when he was in his mid-20’s he got caught up with the wrong crowd and ended up doing some foolish things with his life.
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Steve has a felony assault on his record and a marijuana charge from two different courts.  He has had these on his record for over 10 years and is looking to put his history behind him. 

These old cases have become more prominent in his life because he is looking to start his own business, and he may have issues with both a felony and a drug charge on his background check. 

Steve’s story is quite common in my experience.  People have a rough patch in their life, move on and have some success, but a ceiling in their professional life.  It is not easy to advance and reach your goals with felony and drug charges on your criminal history. 

Even though Steve is now a different man with a family, responsibilities, and no legal issues in over 10 years, his background tells a different story.  The reality is nobody cares about your present with a history; they simply do not want or cannot give that person what they deserve. 

If Steve can expunge these charges off his record, they will no longer come up in background checks, and his past will cease to exist to the outside world.  That sounds like an amazing outcome for Steve, but how do we get to that goal?

Why should a felony assault and a marijuana charge simply go away? What is the standard and process for reaching this goal? Michigan says an expungement decision must be made within the context of “is it in the best interest of society?”

A judge must decide the merits of Steve’s request vs the outside world being “warned” and “informed” of his past.  Is it worth allowing Steve to put NO CRIMINAL RECORD on an application? Is that the right thing to do for the company, agency or parties reviewing this information?

Steve is rightfully concerned that his past will forever haunt him, and nobody will give him the benefit of the doubt, so why would a judge? Best yet, it will be the same judge ten years later if still on the bench; it will also be the same prosecutor who charged Steve.  The Attorney General also gets to weigh in, and the Michigan State Police.

Steve needs the judge, two prosecutors and the police to all agree to this outcome? That sounds like a steep hill to climb, but with the right plan and approach, anything is possible.  I make sure Steve understands the hurdle we need to climb, but based on our conversation and the information he has provided me, I determine that he is a good candidate for this type of consideration.

The most important part is Steve does qualify for expungement.  Steve has waited enough time since getting off probation (5 years) and qualifies in the amount of charges (1 felony max, 2 misdemeanor max). Just because he qualifies does not mean he is entitled to anything. 

We need to take a very humbled and realistic approach to the situation.  We also need to be mindful that nobody is in a rush to grant this relief; expungements take months, sometimes a year plus depending on the court, judge, and unique situation.

We also need to be proactive in our approach and do our best to highlight his growth over the past ten years, and his future.  We need to focus in on that “best interest of society” for all the key players to review.  We need to show that Steve had made legitimate change and the reason for the expungement makes sense for the community. 

Steve agrees that it would be in his best interest to take a comprehensive and proactive approach to his case.  We begin to work together on having both charges expunged.  Steve’s case is unique in that the cases are from different courts with different prosecutors and judges; we need to keep all these different players in mind.
The first step is having Steve go back in time and re-examine the person he was back when these incidents happened.  There is nothing to hide, the more details, information, and knowledge we can convey to the judge and prosecutor about Steve from ten years ago the better. 

We then need to highlight and detail all the positive steps in Steve’s life over the past ten years.  This includes new education, jobs, family, qualifications/achievements, community involvement and other positive moments in his life. 

We need to show Steve at Point A ten years ago, and the timeline he traveled to Point B now.  What does that journey look like?

Once we flush out this journey, we need to then highlight Steve going from Point B to Point C.  That final point is where Steve is planning to go with his life; what is his next big step that he is being held back from? It must answer the question, if we expunge these cases, now what? Is Steve simply going to sit at home and be the same guy, or is there a next step in his plan?

Because Steve is starting his own business and would be disqualified from receiving licensing because of his past, we need to highlight this as part of his application.  Make sure that this barrier is flushed out and clear to the people reviewing his case.  We then need to show IF he can start his business, what does this mean for Steve, his family, and the rest of the community?

If Steve has his business open, are those benefits going to outweigh the downside of clearing his past from his history?

Once we have established the answer to the “best interest” question, we now need to shift our attention to what else can we do to enhance our application? Is there something we can do to give more confidence to the decision maker that the best decision is agreeing with our request?

For expungement cases, I like to add two unique elements to my client’s application.  I like my client to be productive during the time of application, which might mean some community service work in the same city/county as the original case. I want to be able to show the prosecutor and judge that my client is still making amends for his/her past choices and has a strong interest in making the community better. It simply cannot hurt to do more; it may be that little extra gets the job done. 

Next, we want to assist the judge in making the ultimate decision.  The prosecutor(s) get to object, agree or leave the decision in the judge’s discretion, but ultimately the judge makes the final call if the client is eligible.  If the judge is going to put his/her neck out there and clear my client’s record, we want to assist that decision in our favor. 

We do this by having Steve meet with a third-party mental health counselor; someone who can sit down with Steve review the past ten years and make a recommendation if Steve is in the right mindset to move forward with his life.  Based on that evaluation, is Steve someone who is likely to offend again, or has he made real changes?
Having a licensed mental health care professional recommend that Steve is prepared to move forward, and is a changed person, can give the judge confidence to simply “follow the recommendation”.  If someone where to come back to the judge one day down the road and ask for justification for his/her decision to expunge, they can point to my client’s third-party recommendation as a foundation for that decision. 

Because Steve has provided a detailed ten year timeline which shows his evolution as a member of society, and he’s agreed to do the extra community service, and sit down with a neutral third-party professional, he has put himself in a great position.  We can now make a compelling argument to the judge why expungement is in the best interest of society.  

Peter leaves me a voicemail early Saturday morning about a recent Resisting Arrest incident.  He says that he was out drinking at a bar with his friends and got into a dispute with one of the bouncers; he was forced to leave the bar and pushed out onto the street.  He felt this was unfair and tried to re-enter the bar; he was denied, and the police were called to the scene. 

Some of the details are fuzzy, and Peter is still terribly upset about a situation which he believes was not his doing.  He is upset at the bouncers and the police department.  Peter is in a very emotional state and has the fight or flight mindset impacting what he is telling me about the case.  I want to be respectful of Peter’s version of the story, but it is my job to figure out what the evidence is, not how Peter views what happened. 

As a former prosecutor, I view cases from both sides, and understand that a prosecutor only cares about the four corners of the police report.  It’s also important to focus on the underlying facts of the criminal charge, not use all of our energy and effort on disputing something the client is not even charged with; here is what I mean:
Peter is recounting things that happened in the bar with the bouncer, something about bad service, a bartender giving him the wrong drink, and being unfairly kicked out of the bar.  It sounds like he had a bad night, and maybe got some bad customer service.  The problem with this is Peter is NOT charged with being kicked out of a bar; it’s what is upsetting him, but he’s actually charged with shoving a police officer. 

Peter wants to focus on the “unfair” part, and not on the crime he committed.  This is quite common for a client who is still fresh off the incident; they also tend to focus in on what they believe has two versions of the facts. 
Sure, Peter could have valid points about bad customer service, he may even have a civil lawsuit against the bouncer if he was injured, but that is not my focus.  My #1 and only focus is the felony charge of Resisting Arrest that Peter is now facing.  The extra noise around the case is relevant to an extent, but NOT part of the equation for negotiations or at a potential trial.

If Peter is willing to refocus his energy, insight, and effort into the portion of the facts that landed him charged with a felony then we can get to work on figuring this out. 
Peter acknowledges that from what he remembers, he did push the police officer, but he says he was really drunk and upset.  Once he realizes that the case is all about THE PUSH, he begins to settle down, and is admittingly regretting this poor choice.
I do not want Peter to get too down on himself, I want him to understand the major opportunity presented in this case.  Peter has no prior criminal history; he has a good job and a family he loves. 

If handled correctly, we can isolate this moment in time, and explore the REASON this happened, not an excuse.  We can’t use him being drunk as an excuse or a defense, but it appears it was one of the underlying reasons why he acted in a manner, which does not reflect his past.

The problem we face are those four corners of the police report.  The prosecutor is going to review the officer and bouncer statements and read about a drunk man causing trouble at a bar; when the police were called, he then shoves a police officer.  We have drunk, causing a scene and trouble for a business and assaulting a police officer.  Although not charged with being drunk or anything with the bar, these are just pile-on bad vibes for the case. 

We deal in perceptions with the prosecutor and judge, and this is a terrible first impression for Peter. The four corners of the police report will sink Peter if we don’t do anything to counteract this perception. 

Remember when Peter was upset and arguing about what happened inside the bar? I explain to Peter that we’re going to turn this negative that he is so mad about, and wanted to “fight it” and turn it into a positive for our case. 
We need to make sense of this case for the prosecutor and judge and isolate what happened.  We aren’t going to dispute it, because he’s not charged with doing anything inside the bar, but we are going to flush out he underlying facts that ended up with an officer being pushed by Peter. 

We’re going to rely on the fact that Peter was drunk and upset to help our case; the more drunk and upset he is, the better for our case! That might not make sense at first, but we need to explain why someone without a criminal record, or any history of issues would push a police officer outside of a bar.  This can’t be his usual Friday night activity; causing scenes and pushing cops.  We don’t fight these facts, we use them with the prosecutor and judge to our advantage!

If Peter is so drunk and made, his decision to push the police officer makes more sense.  Peter respects the law, and his own father is a retired police officer; if he were sober, or drunk, but not upset, there is no way he would push the police officer.

Of course, we can’t go as far as to use these circumstances as a “free push the cop” card but if we can explain the underlying issues, we can isolate the result.  Well now what? Every time Peter gets drunk or upset, he is going to break the law?

Well no, Peter is 45 years old and has never had a criminal issue before.  But is this a new thing for him? If it is, what can we do about it?

As we explore the issue more it sounds like Peter has been having issues with his wife and was out to blow off some steam.  That steam resulted in getting so drunk that he lost control of his better judgment and being drunk and forced to leave the bar put blinders on his decisions.  If we can properly address this new underlying issue, we can avoid the #1 worst thing to be at the courthouse.

We do this by being proactive and turning this negative night for Peter into a positive time of growth, reflection, and insight.  If Peter is willing to put himself out there, get help and be open to making changes, I am confident that the prosecutor and judge will better understand his actions, and agree to support our long-term goals for Peter.

Peter agrees that the best approach is to take control of his case in a proactive way.  He also agrees that his drinking in past few weeks has accelerated and his stress level is way up.  He was drinking in order to get through the tough days and nights and agrees that he could use professional help. 

I am proud that Peter is open-minded about getting this proactive help, and better understanding of his mental, emotional, and physical health. This process will begin with professional counseling to address the stress and anxiety issues; we also need to address the new substance abuse problem developing.

It is also important to address the “anger management” issue from the push; while Peter may not have an issue with anger as a whole, but in a particular moment his brewing anger ended up in a felony charge.  We are going to be humble and be open to all help for this case.
 
We also want to demonstrate that Peter is a productive member of our community; this comes with highlighting his career, education, and family, but all of that was in place when he pushed the officer; we want to do something new.

We decide to sign-up for community service hours in the same community where this incident happened.  We want to give back positive energy and put in sweat equity.  We have a case where we disrupted a local business and respected and assaulted a member of law enforcement.  We cannot change what happened, but we can certainly do our best to counteract the negative energy which the incident; it is a start, and only helps our position. 

Because Peter has agreed to be proactive, we now have a path to create an outstanding result in his case.  Both the result itself, and setting him up to succeed in the future, with his family, career, and his overall well-being.
Peter’s progress will be shared with the police officer, prosecutor, and judge; there are the key players that we need to look beyond the four corners of the police report. 

It is our goal to work toward avoiding a felony on Peter’s record and avoiding jail time; those are our two main goals, and both can be accomplished because of Peter’s decision to be proactive. 
​
We shifted Peter’s mindset of anger, frustration and feeling like a victim to a humbled and reasonable mindset that focused on tangible goals with a comprehensive plan to reach them. 

Over the past few weeks, I've spent my time over Zoom with clients, prosecutors, judges, probation and court staff.  Handling criminal cases over the internet has become the new normal for now.  Wanted to share some practical advice for clients and other attorneys based on my experience.

#1 - Just because the case is over Zoom does not make it any less serious or demanding.  Every Zoom hearing I have done, the judge is sitting in his/her chair in the courtroom with the full power over the case as if we were in person.  Any violations of bond or non-compliance is one phone call to the police away from them showing up at your door.  The distance of being over the internet will not save or excuse non-compliance.  

#2 - You must dress and act as if you were in the physical courtroom.  This means wearing court appropriate clothing, participating in the case in a suitable area of your home with good lighting, no distractions and confirming a good internet connection.  You should act as if the judge can see and hear everything going on around you.  A good pro-tip is to mute your sound if you find yourself in a virtual waiting room as other cases are going on.  

#3 - You must address the court in the same manner as if you were a few feet away from the judge.  This means referring to the judge as "your honor" and showing complete respect to the proceeding. 

#4 - Payments and obligations don't change because you're on a computer.  If fines are assessed, those will still be due; most courts have online payment, you can mail a check or use a drop box.  Failure to pay or fulfill an obligation has the same consequences despite the proceeding over Zoom.

The final piece of advice is not followed by the majority of attorneys and clients.  It is NOT required so if you're reading this, and you haven't done this, it doesn't mean you'll be in trouble, but in my opinion, you're not maximizing your situation.  

#5 - COME PREPARED! - this means proactively working on your case even before the hearing.  Your attorney should have worked something out with the prosecutor in advance, potentially addressed any issues with the court and judge ahead of the hearing, and maybe even spoke to the probation department.  Due to the lack of in-person interaction, it's sometimes difficult to cover a lot of issues, if something is complicated, it may not be addressed properly over the computer.  It is best to do the pre-work and turn the Zoom conference into a formality/simple proceeding with the heavy lifting already done.  

All of my clients are extremely proactive from day one, and this is even more important handling cases via Zoom.  Judges and prosecutors have more downtime in reviewing files, and my clients are able to participate in this process by providing substantial pre-court progress.  We can work toward changing the perception of a client's case well ahead of signing into Zoom. 

I've had a lot of success over the past few weeks with my clients, because we are miles ahead of the game, and make things easy for a prosecutor and judge to say YES to our requests. 

Due to Covid-19, most courthouses in Michigan are limiting in-person access to the general public; courts are handling some matters in-person such as felony hearings, some trials and in-custody appearances.  Courts are trying to either push other cases out, or figure out an alternative method to process cases.

In recent weeks, I have been spending my time on Zoom speaking to prosecutors and judges on behalf of my clients.  Courts, judges and prosecutors are getting more comfortable working on cases from a distance, and allowing the court proceeding to happen over the internet.  

There are challenges to this process, but also many advantages.  As an attorney who is extremely proactive with his clients, this extended timetable has allowed my clients additional time to change the perception of their case, and make a positive impact on day one.  

Prosecutors have also been more receptive to discussing cases in advance of court, and have more time to review my client's progress.  When a prosecutor views a stack of files, they see a name and a charge; they are easily distracted in the courtroom bombarded by attorneys and sometimes not able to focus their attention on singular cases.  It's always my strategy to reach out to a prosecutor ahead of time to have them review my client's progress, but now that is simply the new normal.  Prosecutors have a little more time to review my client's progress, and simply my clients standout like rock-stars in the process. 

Attorney A, B and C simply reach out and ask for a deal or great outcome without much justification.  In contrast I am able to say, "here is what my client has done since this incident" with attachments and details.  The prosecutor now has the time to review and shift their perception of my client.  I've had outstanding feedback from prosecutor's in the past few weeks; my clients have been praised for taking this negative time in their life and turning into a positive learning experience. 

It's also been my strategy to reach out to the probation department in advance and the judge's staff to send my client's progress.  This has expedited great outcomes, including dismissal of charges; advancing cases and being proactive has saved my clients months of probation, additional court dates, and earned them reductions and dismissal of charges.  

Like everything I do, we turned the negative Covid-19 and having to use Zoom into a positive for our clients.  My clients come to the Zoom hearing extremely prepared and ready to finalize great outcomes.