Defense to Felony Nonsupport Charges

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The Michigan Supreme Court upholds the “impossibility” defense to felony nonsupport charges. In Michigan, it is a felony to fail to pay child support in the amount or at the time it was ordered. Statutorily there is no defense to this crime. The problem is that many well-intentioned parents, who are doing the best they can, are charged with felony nonsupport by relentless, unscrupulous prosecutors who care nothing about ruining a parent’s life for the sole purpose of improving their boss’s chances of advancing in politics. It’s an example of governmental prosecution out-of-control.

Although the prosecutors and the attorney general in the State of Michigan have taken a position that there is no defense possible to these charges, the Supreme Court of Michigan has stood up for the rights of well intended parents who, through no fault of their own, were unable to pay all or part of their support obligations despite their best efforts. The Michigan Supreme Court ruled, “We endorse the well-established common-law defense of impossibility as the proper defense to felony nonsupport.”

A defendant cannot be held criminally liable for failing to perform an act that was impossible for the defendant to perform. When it is genuinely impossible for a defendant to discharge a duty imposed by law, the defendant’s failure is excused. While many courts are reluctant to grant motions to dismiss these charges, a credible, experienced and aggressive defense lawyer is the best hope in trying to get these charges thrown out of court.

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The defense attorney must convince the judge or a jury that a defendant acted in good faith and made all reasonable efforts to comply with the family court order, but could not do so through no fault of his or her own. Defendants who hope to use the defense of impossibility in a felony nonsupport case, must prove they made all reasonable efforts, and use all resources at their disposal, to comply with their support obligations. For the payment of child support to be truly impossible, a defendant must explore and eliminate all the reasonably possible, lawful avenues of obtaining the revenue required to comply with the support order. Defendants must not only establish that they cannot pay, but that theirs are among the exceptional cases in which it was not reasonably possible to obtain the resources to pay.

Factors that must be considered relative to a claim of impossibility include the following:

  • whether the defendant has diligently sought employment;
  • whether the defendant can secure additional employment, such as a second job;
  • whether the defendant has investments that can be liquidated;
  • whether the defendant has received substantial gifts or an inheritance;
  • whether the defendant owns a home that can be refinanced;
  • whether the defendant has assets that can be sold or used as loan collateral;
  • whether the defendant prioritized the payment of child support over the purchase of nonessential, luxury, or otherwise extravagant items; and
  • whether the defendant has taken reasonable precautions to guard against financial misfortune and has arranged his or her financial affairs with future contingencies in mind, in accordance with one’s parental responsibility to one’s child.
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The existence of unexplored possibilities for generating income for the payment of the court-ordered support suggests that a defendant has not raised a true impossibility defense, but merely an assertion of inability to pay (which is not a defense). To be entitled to a jury instruction on this affirmative defense, a defendant must present convincing and credible evidence from which the judge or jury could conclude that it was genuinely impossible for the defendant to pay the support. Assuming a defendant has made this threshold showing and is entitled to an instruction, then the defendant may be exonerated if the trier of fact finds that the defendant has established by a preponderance of the evidence that it was genuinely impossible for him or her to comply with the family court order for each and every violation within the relevant charging period.

Bond or Bail in Felony Nonsupport Cases

The law dictates that a defendant may be released on bond if he or she is able to pay a bond in the amount of 25% of the total arrearage. In practicality, for most defendants charged with these offenses, a 25% bond amounts to a denial of bond because the sum of money required is just too much to attain. There is a little known provision in the law that gives the defense attorney the ability to argue for a significantly lower bond if “good cause” can be shown. In practicality, this is not a high burden and it is generally in everyone’s best interest if the defendant is out on bond and can stay employed. Do not be sold out by a lawyer who is not willing to fight for every possible advantage for his or her client, the lawyer should be fighting to have their client out of jail and on bond.

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Michigan Felony Nonsupport Defense Attorney

If there is not a legal defense to a felony nonsupport case, there are many ways for a good defense lawyer to mitigate the damages. The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has negotiated outright dismissals of these cases. In other cases, the team has convinced the prosecution to reduce the felony charge to a misdemeanor. Additionally, the defense lawyer also has to be able to convince the sentencing judge not to create conditions of probation and repayment to be so difficult that the defendant is set up for failure. At LEWIS & DICKSTEIN, P.L.L.C. we consider it a top priority to protect our clients and prevent a court from ordering a sentence that is too difficult for a defendant to handle.

If you or someone you love is charged with Felony Nonsupport in Southeastern Michigan and you are interested in retaining aggressive and successful defense counsel, please do not hesitate to call LEWIS & DICKSTEIN, P.L.L.C. for a free consultation at (248) 263-6800 or complete a Request for Assistance Form and a highly experienced criminal defense lawyer will promptly contact you.

We will find a way to help you and, most importantly,
we are not afraid to win!

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Misdemeanor and Felony First Offense Sentence Options

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There are options that may be available to someone who is charged for the first time with certain misdemeanor and felony offenses in Michigan. An experienced criminal defense lawyer will know all of the available options and how to maximize his or her chances of obtaining an extraordinary result. A person charged with a first offense for certain offenses, if they are under 21-years-old (at the time of the offense) or under other special circumstances, may qualify for a special disposition whereby the offense can be dismissed upon meeting certain requirements or the offense may NEVER even go on their criminal record. Although these options may be available, it is infrequently certain that the judge will grant this type of extraordinary relief. This is where a great criminal defense lawyer can be invaluable and can make the difference between a conviction and a clean record.

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Drug Crimes including Marijuana, Cocaine, Prescription Medication, and Others

MCL 333.7411 (also known as “7411”): This provision allows for a first-time offender involving use or possession of marijuana, cocaine, Vicodin, Xanax, Oxycontin or controlled substance to have the proceedings deferred without entering a judgment of guilt. This provision is available for both misdemeanor drug crimes and felony drug offenses. After successfully completing probation, the court shall discharge the individual and dismiss the case. If granted treatment under 7411, the status may be lost if there is a violation of probation.

Dismissal Under a Delayed Sentence

Although many judges are reluctant to grant a delayed sentence, and some outright pretend they do not have the authority, a dismissal after a period of time following disposition on a misdemeanor or felony case is possible under MCL 771.1. This provision can be a very important tool for Michigan Criminal Defense Lawyers while they fight to achieve amazing results for their clients. In cases other than murder, criminal sexual conduct, and major drug offenses, if the defendant is found guilty or pleads guilty, if the court determines that the defendant is not likely to engage in an offensive or criminal course of conduct and the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation for not more than 1 year to give the defendant an opportunity to prove his eligibility for probation or other leniency compatible with the ends of justice. This section also does not apply to juveniles. If granted a delayed sentence, the status may be lost if there is a violation of probation.

Youthful Offenders – Holmes Youthful Training Act (HYTA)

MCL 762.11: This statute is applicable to those charged with crimes that were committed between the ages of 17 and 21, and sometimes up to 24 years old. If a defendant is granted HYTA, no conviction is ever entered on their record. Essentially, this means that the case is taken under advisement and then dismissed when probation is completed successfully. Many people, including less inexperienced criminal lawyers, do not know that probation under HYTA may include incarceration in jail or prison. Youthful trainee status is not available for certain offenses, including but not limited to offenses involving life in prison or major controlled substance offenses. If granted treatment under HYTA, the status may be lost if there is a violation of probation. For those between the ages of 21 and 24, HYTA can only be granted if the defense lawyer can convince the prosecutor to agree to that disposition.

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Dismissal of Domestic Violence Cases

Under the Domestic Violence Statute, MCL 769.4a, when an individual who has not been convicted previously of an assaultive crime pleads guilty to, or is found guilty of domestic violence, the court, without entering a judgment of guilt and with the consent of the accused and of the prosecuting attorney may defer further proceedings and place the accused on probation. As you may expect, many complainants in domestic violence cases are reluctant to agree to a disposition that does not result in a conviction. An aggressive, experienced criminal defense attorney is often the key to convincing the prosecutor to persuade the court and complainant to agree to this type of resolution. If granted treatment under 769.4a, the status may be lost if there is a violation of probation.

Why an Experienced Michigan Criminal Defense Attorney Can Help

All of the provisions above are NOT guaranteed, even if a defendant meets all of the requisite criteria. Many judges are reluctant to grant any status that results in the defendant having a conviction. A conservative or strict judge may decide that it is better that the defendant be convicted and later attempt to obtain an expungement after five years if they remain out of trouble. Unfortunately, expungement are not guaranteed either. A defense lawyer has to do everything humanly possible to fight to convince the sentencing judge that the client is worthy of special consideration.

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Another complicating factor can be a recalcitrant or overly zealous prosecutor. Prosecutors are pre-programmed to give defendant’s a hard time in court. In many cases, there develops a personal animosity with a defendant or a sympathy for a “victim” and the prosecutor objects to special consideration. This is particularly problematic in some courts were judges are predisposed to follow the prosecutor’s recommendations. A great criminal attorney will know what to do to either convince the prosecutor not to object or, in the alternative, convince the judge to grant a special sentencing provision over the objection of the prosecution.

All of the above sentencing options are available in Circuit Courts and District Courts throughout Oakland County, Macomb County, Wayne County, Livingston County, Washtenaw County and in many other jurisdictions throughout Michigan. If you or a loved one is a first time offender or may be qualified for any of the above provisions, please call LEWIS & DICKSTEIN, P.L.L.C. for a free consultation and case evaluation at (248) 263-6800 or fill out a Request for Assistance Form and a highly experienced criminal defense attorney will promptly contact you.

We will find a way to help you and, most importantly,
we are not afraid to win!

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Felony First Steps and District Court Hearings

Felony – First Steps and District Court Hearings

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I. The Criminal Activity and Police Investigation

The first step in a case is the investigation by the police. They will begin collecting evidence and questioning potential witnesses. After the police have collected as much information as possible about a crime, they will analyze the evidence and determine if, in their judgment, they should present their evidentiary package to a prosecutor. It should be noted, however, that the police may arrest anyone at any time if they can articulate facts amounting to probable cause, and of course they can arrest anyone they see commit a crime.

Felony First Steps and District Court Hearings

II. The Prosecutor’s Decision

The police do not choose who to charge; the prosecutor does. If a prosecutor believes the police evidentiary package establishes probable cause to believe a crime has been committed, the prosecutor determines whether they have enough admissible evidence to charge someone. If so, the prosecutor authorizes a warrant against the defendant.

III. The “Swear To,” Authorization, and Arrest

Once the prosecutor authorizes a warrant, a police officer takes the warrant to a district court judge or magistrate and “swears to” the warrant. The officer must make a record establishing probable cause for an arrest. If satisfied, the judge then grants the warrant and then the police are entitled to make an arrest. If a case is not of great seriousness, the police may send a letter to the defendant or call him or her on the phone. If the police believe the defendant is a danger to the public, they will immediately find the defendant and arrest him or her.

IV. Booking

After an arrest is made, the police take the defendant to the police station in the city where the crime took place and “book” them. This means the defendant is photographed, finger printed and personal information is gathered about the defendant, assuming the defendant agrees to provide any information. When the defendant has been booked, if court is in session the defendant is brought before a judge. If not, the defendant is lodged in a jail until a judge is available.

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V. Arraignment

When the defendant is brought before a judge, the judge tells the defendant exactly what he or she has been charged with. The judge then asks the defendant how he or she pleads to the charge. If a defendant refuses to say anything, a “not guilty” plea will be entered. In the vast majority of cases, the defendant pleads not guilty. A not guilty plea is similar to a starting gun: it starts the legal adversarial process.

It is at this time that the judge addresses bond. Frequently, the police will be questioned by the judge so the judge can assess what kind of bond to put in place. In particularly important and serious cases, the prosecutor will be present to attempt to ensure a bond is set which will ensure the defendant stays in jail or will return to court when ordered. It is at this stage also that the defendant is asked if he or she wants a court-appointed attorney or if they will retain an attorney.

A defendant charged with a felony may plead guilty to a felony in district court (city or municipal courts). However, a circuit judge (county judge) must sentence the defendant on the conviction. District courts do not have authority to sentence a defendant for a crime that carries a potential penalty of over 1 year in jail.


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VI. Probable Cause Conference

A probable cause conference (PCC) is a court date where the prosecution and defense meet and discuss possible plea bargains, procedural matters, discovery, and bond issues. The PCC is required to take place 7-14 days after arraignment.

VII. Preliminary Examination

The preliminary examination is a hearing whereat the prosecution must elicit testimony and produce evidence establishing that a crime was committed, and probable cause to believe the defendant committed it. The preliminary exam must take place within 5-7 days of the PCC.

The prosecution does not need to prove the case beyond a reasonable doubt at preliminary exam. If the judge is satisfied that the prosecution has met its burden of proof, the case will be “bound over” to circuit court in the county where the crime took place.

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Felony and Misdemeanor Criminal Defense

If you are a suspect in a criminal investigation or if you are charged with a felony or misdemeanor, your situation is serious and you must seek to protect yourself in the best way possible. A criminal conviction will likely affect all aspects of your life for years and should be avoided if possible. The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has been successfully defending clients in Michigan for decades and we provide a free consultation and confidential case evaluation. Do not get railroaded! Call us today at (248) 263-6800 and get the protection and defense you deserve. If you complete a Request for Assistance Form, we will promptly contact you.

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