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The Criminal Defense Lawyer Quiz | Schmierlaw

How can an Experienced Criminal Defense Attorney Help?

How can a Criminal Defense Attorney Help?

You Be the Criminal Defense Lawyer

One thing is for sure, crime makes for the best stories. Who wants to hear about the legalities of a corporate merger? Look at the facts and you decide how you will help your client if they are charged with a crime or need a criminal defense lawyer.

Answer

Case #1-Robert

Robert is charged with Assault on Police Officer, Destruction of Police Property, and Resisting Arrest

24 year old alcoholic white male

Sitting in Food Court at Meijer's at 2:00 AM

He is visibly drunk but just sitting at table

A cashier alerts manager of Robert in the food court

Manager calls police, reports "drunk in the food court".

Police arrest Robert for "Disorderly Conduct"

Outside store, Robert punches Police officer in nose.

Handcuffed, Robert cause $5000 to Police Car Interior

What are the Issues and What Happens?

Return to the Facts

Robert-What Happened

Robert did not give up his right to a Preliminary Exam. At the exam the Officer’s testified that they had received a dispatch that there was a drunk in the store, entered the store and saw him slumped at the table in the food court. They testified he did not appear to be bothering anyone, did not appear to have damaged any merchandise, and was initially compliant when they told him he was under arrest for disorderly conduct. In addition, they did not see evidence of the beer he was said to have been drinking. He didn’t start fighting until he was out of the store, and in cuffs or confined, under duress, in the back seat of the cruiser where he began to kick the interior causing significant damage.

Schmierlaw filed a motion to have the charges dismissed. In Michigan, to be guilty of disorderly conduct, you have to have caused some disturbance. Robert did not, he was merely drunk. And in Michigan, you can be drunk in public as long as you don’t bother anyone. Robert hadn’t. And lastly, if the police had no legal reason to arrest Robert, according the Michigan Supreme Court, he had every right to resist. The end result was that the case was dismissed and Robert walked out of Court to retake his spot on the corner asking passerby's for spare change.

I never heard from Robert again. He talked about moving to Atlanta where his mother lives. Hopefully he was able to conquer his alcohol problem but if he didn't, if he moved, at least he will be in a warmer climate if he is still living on the streets.

Answer

Case #2- William

Wiiliam wants to expunge a Breaking and Entering misdemeanor"

56 Years Old, White Male

Has two prior misdemeanors for Driving on a Suspended License

A couple of years later, William and Buddy break into garage to joyride on "hot" snowmobile

Prosecutor does William a "favor" and reduces charge to Breaking and Entering, a misdemeanor

William takes deal and pleads to the misdemeanor

The DWLS conviction are no big deal but Breaking and Entering is affecting his hope for a new job

Can William get the expungement?

Return to the Facts

William-What Happened

Williams case is not unique and the deal he took 25 years ago seemed to be good deal at the time. Now it’s coming back to haunt those who took it.

At the time of the offense, if you had more than one conviction, you could not expunge any anything. About five years ago, the legislature made expungements, or set-aside convictions, easier. Now if you have no more than one felony and two misdemeanors, you can expunge the felony, although you will still live with the misdemeanors. If you only have two misdemeanors, the law allows you to wipe both convictions off your record at the same time.

In William’s case, had the Prosecutor not done him a favor over 25 years ago, William would have had one felony and two misdemeanors, and, in that case, he could have expunged the felony home invasion which was the offense holding him back. But because of the “favor”, William has three misdemeanors on his record making him ineligible to expunge anything.

One avenue available to William is to file a motion “Nunc pro tunc”, (English translation: "now for then"). This allows the Court to look back and to correct an earlier ruling or correct an injustice caused as a result of the earlier ruling.

We asked the Court to go back and dismiss the original charge and recharge William with the original offense, a felony. He had already served probation for the offense and after entering a guilty pleas on the felony, William, who now had one felony and two misdemeanors, could expunge the conviction that was affecting his future.

One other note. The two DWLS tickets cannot be expunged and, under current law, no driving-related offense can be set-aside or expunged. So. offenses like drunk driving stay on your criminal record for life unless the Legislature changes the law.. Also be aware, that some crimes are in both the driving code and the criminal code, such as Fleeing and Eluding, an experienced criminal defense attorney can help make sure that it is charged under the code that allows you to expunge or set-aside a conviction if you plead or found guilty of the crime.

Case#3-Emma

Answer

Emma is Charged with Possession of Cocaine

19 year old black female

Enrolled in Nursing School

No prior criminal history

Driving home from Nursing School in mom's car 10:30 PM

Pulled over for burnt out rear light

Emma consents to search of car

Police find small packet of cocaine under passenger seat

Emma is arrested for Possession of Cocaine

Mom bails daughter out, administers drug store drug test, results are negative for any drugs including marijuana.

What Should Emma Do?

Return to the Facts

Robert-What Happened

She could go to trial. The officer would testify against her and drug lab results would be entered into evidence. In Emma’s favor, her mom would testify she had lent the car to a friend, that she had administered a home drug test to Emma that was negative, and that she never had known her daughter to use illegal drugs. In addition, Emma could testify and she probably would have made a compelling witness, even testifying for herself.

She Could Plead. On the other hand, if Emma was willing to admit that she was in "possession" of the cocaine, the Prosecutor would recommend HYTA status, she would be on probation for a year, and any record of the arrest would be hidden and would have no effect on the nursing license she was working to obtain. And it wouldn’t show-up on a background check when applying for a job.

Why Plead? If she won at trial, it would not show up on her record and would have no effect on her future. If she pleaded and successfully completed probation, which I little doubt she would, it would not show up on her record, and have no effect on her future. When the result is the same, why take the risk of going to trial and put your future in someone else's hands? A conviction by jury would be on her record, she could kiss her nursing career goodbye, and she would be a felon.

Emma Chose to Plead. Even though Emma was probably innocent and probably could have won at trial, the results would have been the same. And keep in mind, that while Emma's mother would have testified in support of her, she is her mother and of course would have been considered biased. Although Emma had to suck it up and admit doing something she did not do, although unfair, it probably was the best decision. Today, some three years later, Emma did complete probation, the conviction was never made public, and Emma is now a practicing nurse.

Case #4- Clay

Answer

Arrested and Charged with Carrying a Concealed Weapon CCW

20 year old black male

Has an outstanding warrant stemming from a shoving match in school over a girl.

Is a passenger in a car that is pulled over

Getting consent from the driver, the Police search the car and find a gun

Finding the gun, the police order everyone out of the car

The police search the driver, Clay and the other passenger

The Police find a pistol tucked into Clay's waistband

Clay is charged with CCW but claim the Police had no right to search him.

What will Happen to Clay

Return to the Facts

Clay-What Happened?

Clay stated the police had no reason to pull his friend over other that he was black and the cops white. While that may be true and maybe his buddy had been denied his Due Process or other Constitutional Rights, the US Supreme Court has ruled that you can’t rely on someone else’s rights. So, even though Clay’s friend might have had a Constitutional Issue, Clay can’t rely on them. His friend's rights were violated, not Clay's.

Clay further argued that the police had no right to arrest him; he hadn’t done anything wrong. While maybe Clay did nothing wrong to justify an arrest, there was a warrant out for his arrest. And again the Supreme Court has ruled against Clay's argument. The Court held that even if the subjective reason the police arrested Clay was illegal, objectively there was a warrant out for his arrest and the police had the power to take him into custody.

Lastly Clay argued that he did not consent to being searched and so the search was illegal. In addition, he had not been read his rights. Once again, Clay is wrong. Police don’t need a search warrant under certain circumstances. For instance, if the person consents to a search, the police conduct a “public safety” search, or if the search was conducted incident to arrest. So, if you are taken into custody because of a warrant or the police have probable cause to arrest you, the police have the right to search.

In Clay’s case, there were no Constitutional Issues, the gun was found stuffed in his pants, and he had no Concealed License Permit. While Clay could go to trial, it is unlikely he would prevail. He was carrying a concealed weapon and it is against the law to carry a concealed weapon without a permit.

But Clay is twenty years old and eligible for HYTA. An experienced criminal defense lawyer would probably advise Clay to demonstrate remorse, accept responsibility for carrying the gun, and ask the Court to sentence him under HYTA. Under HYTA, the conviction would be hidden and if he successfully completed probation the conviction would have little effect on his future. Why risk losing at trial, when HYTA accomplishes the same result as being found "not guilty" which was highly unlikely in Clay's case.

What Does a Criminal Defense Lawyer Do?

Ever wonder what a Criminal Defense Lawyer does? How can a criminal defense lawyer help me if I am charged and arrested for a crime? Or, why do I even need a Criminal Defense Lawyer in the first place?

Now you get a chance to try your hand at being the Criminal Defense Attorney. Each month Schmierlaw will try to post a couple fact patterns from a couple cases. Read the facts of each and decide what the choices are, what you might do in the same situation, and what really happened and why. If you search the site, you can find information about the law regarding the case, what options may be available, and other information to help make an informed choice if this case was about you.

When reading the facts of each case, do what an experienced criminal defense attorney would do. First, look at the facts of the case, check out the law at the Michigan Legislature Website, and see what diversion programs might be available. Do a search on Google for other cases with similar facts and check out legal sites like Find Law, Nolo, or other legal websites for similar cases and the results. And lastly, consider the risk if the case goes to trial and you lose or whether reaching a deal with the Prosecutor makes the most sense. Remember, this is real life with real cases and real consequences.

If you have any questions, comments, or for more information, contact criminal defense lawyer Schmierlaw for an initial no-cost consultation and the best criminal and drunk driving defense possible.

Check Back for Other Criminal Case Fact Patterns

Each month, Schmierlaw will look back at some prior cases and publish the facts of the case from the police report. As many of these cases illustrate, it's not alway black and white. That's why an experienced attorney can provide you the best criminal defense possible.

At Schmierlaw, we look at all the facts, uncover the issues, consider the effects a conviction will have on you and your future and give you the best possible legal advice based on our experience. At Schmierlaw, we are experienced criminal defense lawyers. We know the law and with that knowledge can provide you the best criminal and drunk driving defense possible.

Contact Schmierlaw for an Initial, No-cost Consultation

Law Office of James G. Schmier, PLLC
2222 Attard Street, Birmingham, Michigan 48009
Tel: (248) 705-3742     FAX: (248) 540-0044    Email: jschmier@schmierlaw.com