Retrograde Extrapolation Defense to OWI Charges

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Retrograde extrapolation can be used to determine what someone’s blood alcohol content was at the time of driving by utilizing a mathematical equation. By using the BAC levels determined through blood or breath testing during the OWI investigation, time and other factors, a reasonable estimate can be made. Just as a prosecutor may use these calculations to prove that someone was intoxicated or impaired, a skilled and experienced OWI defense attorney can use the same calculations to create a reasonable doubt.

What Does Retrograde Extrapolation Mean to Me and My Drunk Driving Case?

Retrograde extrapolation” may sound like a fancy legal term that is hard to understand unless you are a lawyer or doctor, but despite its unusual name, it is actually a very simple idea. Retrograde Extrapolation, or RE, is a mathematical calculation. It is the rate at which a body eliminates alcohol multiplied by how much time has passed. In theory, this calculation can tell you what a person’s blood alcohol level (BAL) was at some time in the past.

Blood Testing in OWI Cases

As you can imagine, that is easier said than done. All people eliminate alcohol at different rates. Other factors also influence the elimination rate such as what and how much you had to eat, the type of alcoholic beverage you drank, your body size and the state of your overall health, just to name a few examples. Elimination rates even differ between men and women and people of different ages. The reason RE is permitted as a defense to OWI (Operating While Intoxicated) charges, despite these variables, is because medical research shows that there is enough of a percentage of the population that process alcohol similarly to make RE acceptable for evidentiary purposes in court. In other words, it has been decided that RE is a “good enough” and “reliable enough” way to argue a BAL was at a certain level at the time of driving.

Retrograde Extrapolation Can be Used as a Shield or a Sword

Although the prosecution frequently uses a retrograde extrapolation argument to prove that a defendant’s blood alcohol level was above the legal limit, the defense lawyer can also use the science as a defense. In many cases, the BAC of the defendant is rising and Retrograde Extrapolation can be used to raise a reasonable doubt about the level of the BAC at the time of driving.

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How Can a Great Criminal Defense Attorney Deal with Retrograde Extrapolation Evidence at Trial?

Due to the various rates of elimination and the different factors which impact it, an expert is needed to explain RE to the jury for the prosecution. A defense attorney will also want their own expert to challenge the analysis of the prosecutor’s expert, and provide their own estimation of what the BAL was at the time of the driving. At very least, the defense attorney will need to hire an expert to explain the prosecutor’s expert’s RE estimation of BAL so that the defense attorney will be able to effectively cross-examine the prosecutor’s expert.

If the defendant has a court-appointed attorney, typically such attorney will need to ask the court for special expense costs to hire such an expert. Often times the court will be reluctant to spend public funds on an expert witness in OWI cases. The prosecution has virtually no limit to what they can pay to get the best experts available. Many times, these cases end up being a “battle of the experts” and the lawyer’s ability to make the most of the expert’s testimony can be the single deciding factor in the success or failure of the defense.

The government will almost always have a prosecutor with vast experience handling OWI cases. There are no court appointed lawyers who exclusively handle OWI or DUI defense. That is why it is so important to have a reputable, highly experienced retained criminal defense attorney on your side in a drinking and driving case. He or she will know who the best experts are in the field, and will know how to utilize them to get you every possible advantage. In fact, once a lawyer gets a reputation for successfully defending these cases, prosecutors will start to offer deals to make cases “go away” rather than litigate a tough issue before a jury.

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Top-Rated Criminal Defense Attorneys to Rebut Retrograde Extrapolation Arguments

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on felony and misdemeanor charges in Oakland, Macomb, Washtenaw, and Livingston counties and throughout all Southeast Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will promptly contact you.

 

Should I Get a Hired Lawyer?

By | Court Appointed Attorney | No Comments

What is the Difference Between a Court-Appointed Lawyer and a Hired Lawyer?

Many people have the impression that court-appointed attorneys are not effective and that they don’t care much about their clients. The fact is that there are many very good court-appointed attorneys, and how they handle a case does not reflect whether they care about the client. Most attorneys care about their reputations and want to do a good job for their clients. On the other hand, many court-appointed lawyers do not zealously or effectively protect and defend their clients. The biggest problem with getting a court-appointed lawyer is that you cannot chose your lawyer and its up to the luck of the draw who you get.

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In many cases, court-appointed attorneys may want to do a better job on their cases, but they simply don’t have the time or resources to do the best that is possible for their clients. Court-appointed attorneys make as much as 10 times less than a retained attorney; sometimes even less than that. Courts are not always willing to allow court-appointed expenses for certain defense needs such as hiring investigators, analyzing evidence, writing and arguing motions, and consulting with the clients. If expenses are allowed, they are usually very menial, which often leads to a deficient defense. In Oakland County, for example, court-appointed lawyers do not get paid for motions. This forces the lawyer to choose between providing an adequate defense and being forced to volunteer their time.

A hired lawyer, also known as a retained lawyer, is someone you personally chose and pay privately. With a retained attorney, you pick the right lawyer for you considering any budgetary limitations. A retained attorney typically has more resources and time to spend on a client’s case than a court appointed lawyer. If you privately retain an attorney, you can make sure you pick someone who is experienced, effective, has a good reputation, and has good chemistry with the client.

What if I Can’t Afford a Hired Lawyer?

The issue, of course, is can you afford a retained attorney? When some clients hear the price of a top-rated, successful retained defense attorney, a court-appointed attorney starts to sound attractive. What they lose sight of at that moment is that the decision they make as to whether to retain a top-rated defense attorney will affect the rest of their lives. Whatever the expense, it is almost always worth it. In many cases, despite their reluctance and perhaps embarrassment, people charged with a crime must ask relatives or friends for help with a retainer fee, or they may have to sell something they own. This is painful, and that is understood. But if you had no insurance and needed heart surgery, would you find the money or would you go with the lowest-priced heart surgeon you could find? There is no shame in asking for help to save your life. You do not want to trust your life, future, and livelihood to the lowest bidder.

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Do I Have to Get the Best Attorney Available or is a Lesser-Priced Hired Lawyer the Answer?

The worst possible combination in hiring an attorney is retaining a bargain-priced attorney. You usually pay far more than a court-appointed attorney, and do not get any appreciable increase in talent or effort. As the old saying goes, you get what you pay for. Would you pay money to stay out of jail, keep your home and family, and keep your job? Everyone would. There are times to avail yourself of a sale, such as when you buy a car or furniture. Availing yourself of a “sale” price when hiring an attorney could cost you everything you hold dear. On the other hand, paying an astronomical fee to a lawyer is likely wasteful and unnecessary. A great lawyer should charge a reasonable and fair price for legal representation.

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So, What Firm Is the One You Should Hire for the BEST Possible Results?

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on felony and misdemeanor charges in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Southeastern Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form for a free consultation. Give us a chance to show you how we can help.

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

– LEWIS & DICKSTEIN, P.L.L.C.

What is Probation in Michigan?

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Everyone has heard the term “Probation.” But does everyone really know what it means?

Probation is court supervision of anyone convicted of a misdemeanor or felony. A conviction can be by plea or after a trial. Misdemeanors can be state law misdemeanors, ordinance violations, and even traffic misdemeanors. Under probation, the sentencing judge has control over some areas of the convicted person’s life and what they can do, can’t do, and must do for a period of time. Probation is not considered to be a “right,” and a person found guilty of a crime has no choice about whether they will be under the control of either the court through the court’s probation department or, alternatively, jail or prison. For obvious reasons, people convicted of a crime hope their lawyer is influential enough to convince the judge to order a term of probation because the alternative is usually jail.

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Of course, some people find the idea of being told what to do repugnant, and virtually all lawyers have been asked by a client, “If I take the plea being offered, will I have to be on probation?” It is possible in some cases for the sentence to be fines and costs only, without probation; however, this is exceptionally rare.

There are many reasons for probation. Generally, courts use a term of probation to help a client deal with life problems, like substance abuse issues or mental health concerns, or provide some other form of rehabilitation. In other cases, probation is used as a punishment but, at the same time, as an alternative to jail. These clients fail to appreciate the fact that the court wants to ensure the client will not re-offend, and the public will be protected. Therefore, the court will prohibit alcohol and unprescribed drugs in virtually all cases, even those having nothing to do with drugs or alcohol.

What are the Typical Terms of Probation?

As stated above, in virtually all probationary sentences, no alcohol or unprescribed drugs are permitted to be used. Over 60% of all criminal cases involve alcohol or drugs in some way. Probation invariably involves mandatory abstinence. Failing drug or alcohol tests or failing to submit to them as ordered can result in a jail term and perhaps an extended probationary term.

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Probationers not only have to submit to the control of the probation department, they have to pay for it. So-called supervision costs are the costs of testing, reporting, meeting with a probation agent, and perhaps taking certain classes. Sometimes a court will allow a probation term to be “non-reporting.” Cases where this is allowed are relatively minor offenses with no obvious involvement of alcohol or drugs.

Depending on the case, terms of probation sometimes include:

  • community service,
  • fines and costs,
  • organized court work force,
  • writing essays,
  • not going into bars,
  • mental health therapy,
  • court ordered classes,
  • tether (alcohol or GPS),
  • no contact with victims,
  • no assaultive or aggressive behavior,
  • truthful reporting to probation,
  • no driving,
  • staying in the state of Michigan unless permission is granted to leave,
  • no new criminal charges,
  • complete a high school degree,
  • and obtain or maintain employment.

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How Long Does a Term of Probation Last?

The length of a probationary term varies based upon the crime, the history of the defendant, and the abilities of the defense attorney. Usually, felony probation is up to five years. It is often shorter but depends on the circumstances and if the judge can be convinced to order a shorter term. A top-rated, reputable defense attorney can sometimes influence a judge to impose a much shorter term. Sentencing allocution is an art and only the most exceptional lawyers routinely achieve exceptional outcomes for clients. Success at sentencing requires a thorough understanding of the defendant, the judge, and the prosecutor. All aspects of a court’s operations must be expertly orchestrated in harmony to shorten a standard term and reduce the obligations on the defendant. When the judge asks, “Why should I give your client a break on the length of probation?” Your attorney had better have a great answer. The best lawyers always do.

With misdemeanor convictions, the term of probation is routinely one year, although it may be as high as two years. An astute lawyer will know the arguments that can be made to potentially reduce that time to six months or even less, depending on the circumstances of the client and the case. No lawyer can guarantee any specific sentence although a top lawyer gives the client the best chance of getting lenient terms of probation.

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The Best Criminal Defense Attorneys in Michigan for a Probationary Sentence

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on felony and misdemeanor charges in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Southeastern Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

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

– LEWIS & DICKSTEIN, P.L.L.C.

Using False Information to Obtain a License to Purchase a Pistol

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Using false information to obtain a license to purchase a pistol can be a felony or misdemeanor offense. The best defense to a firearms charge is an aggressive, experienced and successful criminal defense attorney.

What Are the Rules for Obtaining a Pistol License?

In Michigan, a person wishing to purchase, carry, possess, or transport a pistol must first apply for and obtain a license for that pistol. The chief of police or the sheriff with policing authority over the residence of the applicant shall issue a pistol license with “due speed and diligence” unless he or she has probable cause to believe that the applicant would be a threat to himself or herself or to other individuals or would commit an offense that would violate Michigan or Federal law. There are a number of conditions that would qualify as a reason to deny a license, but essentially, unless the police authority has a valid, affirmative, demonstrable reason to deny one, the police authority shall issue a license.

False Information to Obtain a License to Purchase a Pistol

The reasons for someone being denied a license are rooted in logic and common sense. For example, anyone who has been adjudged mentally ill, or is the subject of a personal protection order, or is a convicted felon who is a danger to himself or others, may be denied a license. Convicted felons may be issued a license if 3 years have passed since his last obligation to the state has been completed (payment of fines and costs, and completion of all conditions of parole or probation) or 5 years if the crime they were convicted of was a “specified offense” (threatening use of force, unlawful possession or distribution of firearms, manufacturing or delivery of controlled substances, use of explosives, burglary of an occupied dwelling, or arson). Convicted felons must first petition for and be granted an “Order for Restoration of Rights” from the circuit court of the county in which they reside.

A person must be 18 years old to buy a pistol from a private seller, and must be 21 years old to by a pistol from a registered dealer. A person must also be a resident of Michigan and able to prove it with a driver’s license or a state identification card or be registered to vote in Michigan.

Misdemeanor and Felony Violations of the Firearm’s Licensing Law

Sometimes, a person may be accused of trying to get around the licensing rules if they are disqualified from getting a license legally as explained above. Michigan permits prosecution of anyone who intentionally provides false information on an application to obtain a license to purchase a pistol. If someone intentionally makes a factually false statement in his or her application, that action constitutes a felony punishable by 4 years in prison and a $2,000.00 fine or both. If someone uses or attempts to use false identification or someone else’s identification to purchase a firearm, such action constitutes a misdemeanor punishable by 90 days in jail or a fine of $100.00 or both.

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Why is the Penalty So Much Larger for Making a False Statement Than for Using False Identification?

The law penalizes people more harshly who make false statements in an application because it is assumed that the applicant deliberately is hiding the fact that they are not eligible to purchase a pistol. In other words, they are legally barred from purchasing a pistol. Lying on an application on a formal state application is a deliberate attempt by a non-eligible person to obtain a pistol, and that, at least in theory, is a higher level of criminal activity. The latter is similar to committing perjury, hence, the more serious penalty. In some cases, a defendant may be charged with lying, the felony, even though the use of incorrect information was accidental or inadvertent. A great defense lawyer can help the prosecutor and judge see that a mistake was made and the error was not intentional.

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Misdemeanor and Felony Firearms Defense Attorneys

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on felony and misdemeanor charges in Michigan. We have successfully represented countless clients in felony and misdemeanor firearms charges. Our defense attorneys have a well-earned reputation for providing the highest possible quality advice and defense. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

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

– LEWIS & DICKSTEIN, P.L.L.C.

Federal Bureau of Prisons Residential Drug Abuse Program (RDAP)

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What is RDAP?

The Residential Drug Abuse Program (RDAP) is a program in the federal prison system (Federal Bureau of Prisons) which attempts to educate federal inmates on the various methods of becoming and staying sober. It is one of the most intensive of any prison-based programs. It is thought that if inmates can refrain from drug use, they will pose a smaller threat of future criminal activity, and will be better inmates while they are still in prison. There is no Michigan, state prison RDAP program.

Prison employees involved with RDAP are highly trained and are trained on a continuous basis as new theories and treatment tactics are developed world-wide. The treatment program includes not just education about the ways to prevent relapse, but also involves job training, mental and physical health education and treatment, and familiarization with adjusting to a healthy, crime and drug free lifestyle. In short, the RDAP’s goal is to return inmates to society in as good a position as possible so that the inmate will have the basic positive skills necessary to enable them adjust to their re-entry into society smoothly and successfully.

Residential Drug Abuse Program (RDAP)

Studies have shown that the all-volunteer RDAP has produced excellent results in line with their goals. The 500-hour, 9-month, 3.5-hour-per-day program is available to inmates who will be in prison for at least that long. In addition to learning valuable, perhaps life-saving skills, the inmates in RDAP who successfully graduate from the program are given a 1-year reduction in their sentences.

RDAP is composed of three individual stages. The first is the 500-hour program described above. The second stage is where the inmate has graduated from the first stage but is still an inmate in the prison. In this second stage, RDAP personnel understand that being in the prison general population is a high-risk situation for the inmate. Accordingly, the stage-one graduates are monitored carefully, and follow-up treatment sessions and activities are provided to the inmate.

The third stage of RDAP is after the inmate has been released to a half-way house or confined to a private home. This stage is known as the Transitional Drug Abuse Treatment (TDAT) stage. During this stage, the released inmate will attend group therapy sessions which groups normally are composed of other RDAP graduates.

How Does an Inmate Get Into RDAP?

As can be imagined, many inmates would like to get into RDAP. This fact caused a huge waiting list to develop, comprised of many thousands of inmates. In 2009, the qualifications for admission into RDAP were altered and significantly tightened, and now it is far harder to get into the program. Only about 10% of inmates who want to get in actually get admitted. So, the waiting list issue has been “resolved,” but only because far fewer inmates are now eligible.

It is important to know that certain documentation (a doctor’s diagnosis, repeated drug or alcohol-related convictions, documented withdrawal episodes, etc.) must end up in the possession of the RDAP screeners for an inmate to even be considered for the program. All applicants must have some kind of official, medical diagnosis for a substance use disorder; a “substantiated diagnosis for a substance use disorder.” Alcohol is considered a “drug” for purposes of RDAP. You do not have to be a convicted drug dealer or user to get admitted. There are certain crimes that will automatically disqualify an inmate, but if you have not committed one of those offenses (murder, arson, rape, kidnapping, etc.) and you are a documented, habitual substance user, and are within 48-60 months of release, you are eligible. There is no “right” to be admitted.

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Can a Lawyer Help Get Me Into RDAP?

Yes, if you have the right lawyer. But even with a federal judge’s order to place you into RDAP, the order will simply be ignored by the Bureau of Prisons if your documentation does not establish that you have a substance use disorder. Inmates have headed off to serve their sentence, comfortable in their belief that their paperwork or the crime they were convicted of would surely be satisfactory to get into RDAP. Many inmates have been met with a regrettable surprise when they get to prison and are told that they are not eligible because the documentation of their substance use was either missing, not complete, or was inaccurate.

Some attorneys, naively, habitually wish to downplay the drug and alcohol issues their clients have, thinking it will help in getting a lighter, less onerous sentence. Therefore, many times a court file and presentence report will be missing valuable information about addiction that could greatly assist a person getting into RDAP. Ironically, attorneys who are unfamiliar with the rules regarding RDAP admission actually fight quite hard at times to keep addiction-related documentation out of the case, and the all-important case file. RDAP screeners rely heavily on the case file to determine whether to admit someone to RDAP.

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An astute, well-seasoned criminal defense attorney will understand that in some cases, substance addiction should actually be emphasized. For instance, if an attorney knows that the client is going to do significant time in prison, and that the client has a substance abuse history, he or she should do everything possible to get as much documentation of the substance abuse issue into the case file and the presentence report.

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have the knowledge and expertise necessary to handle a case according to the best interests of the client, including laying the foundation for a smooth transition into programs such as RDAP. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

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

– LEWIS & DICKSTEIN, P.L.L.C.

Firearms Rights Restoration Attorneys in Michigan

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If My Rights to Purchase and Possess a Firearm Have been Revoked, Can My Rights be Restored?

Yes, they can be, in certain circumstances. Michigan law provides certain circumstances under which firearms rights may be restored, even if you have felony convictions on your record. The time you must wait to petition the county circuit court for restoration of your rights depends upon the crimes you were convicted of. A circuit judge must find by a standard of clear and convincing evidence that you meet all of the requirements of the restoration statute.

Getting Your Gun Rights Restored

The general rule in Michigan is that people convicted of certain crimes (felonies and certain misdemeanors such as Domestic Violence) are prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm or ammunition. However, Michigan law permits people who have convictions to petition the circuit court in the county in which they reside for a restoration of their rights after a certain amount of time. Exactly what crime you were convicted of determines how long you must wait to petition the court for restoration. And if you have had your conviction expunged or set aside, the wait times do not apply to you, and you should be able to have firearms and ammunition unless the expungement order specifically states that you may not have firearms or ammunition despite the expungement.

What Do I Have to Do and How Long Do I Have to Wait to File a Petition?

There are two types of felonies which are addressed by the law. The first group is felonies of any kind which carry a maximum 4-year prison penalty. With 4-year felonies, you must wait 3 years after you have paid all fines and costs, served all of the jail time imposed, and completed all conditions of probation or parole. In these cases, your right to possess firearms under Michigan law is automatically restored; however, your rights under federal law are not restored. Many people elect to go through court for restoration even if their rights have been automatically restored so that they can have a court order proving their restoration and to keep with their firearm. This can prevent an arrest by an uninformed police officer or having to defend a felony charge in court.

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The second, sub-category of felonies are called “specified felonies.” These are felonies which are especially serious and the legislature decided to make the wait longer. These specified felonies are those where: 1) an element of the felony is the use, attempted use, or threatened use of physical force against a victim, 2) an element of the felony is manufacturing, delivering, or possession with intent to deliver controlled substances, 3) an element of the felony is the unlawful possession or distribution of a firearm, 4) an element is unlawful use of an explosive, 5) the felony is burglary of an occupied dwelling or breaking into the same.

If you are convicted of a “specified felony,” you must wait 5 years to petition the court for restoration of your firearm rights. You also must have paid all fines and costs, served all of the jail time imposed, and completed all conditions of probation or parole.

Do I need an Attorney to Petition the Court for a Restoration of My Firearm Rights?

You don’t technically have to have an attorney to petition the court, but as a practical matter, the law is complicated, and you would have a slim chance of succeeding on your own. There are many items you must have in your petition according to the statute, and if any of them are missing your petition will be denied. Courts are very leery to begin with of restoring the firearm rights of convicted felons. It is not a stretch of the imagination to think that courts may in some cases be looking for a reason to deny your petition. And if you say the wrong thing in court, you may torpedo your chances on the spot, even if you filed and pleaded all the right things. And if you are not successful, and you end up violating the law, the penalty is a felony punishable by 5 years in prison or $5,000.00 or both. It is really worth the expense of hiring a lawyer with experience in restoring your rights.

There is No Federal Firearms Restoration

Restoration of your firearms rights under Michigan law is not recognized by the federal government. This means that even though your rights to possess firearms under Michigan law may have been restored, you can still be prosecuted by the federal government for being a felon in possession of a firearm. For those individuals who seek and obtain restoration, they would not want to be in the possession of a firearm at any time they may potentially have contact with federal law enforcement. Even a state law enforcement officer can refer someone for prosecution by the federal government under certain circumstances. Additionally, you will not be able to legally purchase a pistol in Michigan because you will not be able to get a purchase permit, which requires passing a federal firearms background check.

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Firearms Rights Restoration Attorneys

You definitely do not want to hire just any lawyer to file your petition. You do not want to hire a real estate lawyer or personal injury lawyer, for example, to file for you. Although they may do an adequate job, the operative words are “may” and “adequate.” You want an expert attorney who is well-trained in criminal law to handle your petition. Why a criminal lawyer? Because the laws governing firearm restoration are criminal-law-based laws.

The cost in terms of legal fees for firearms rights restoration cases generally starts at $3,500.00.

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on felony and misdemeanor charges in Michigan. We have a well-earned reputation for providing the highest quality representation and for being among the most persuasive advocates. We can guide you expertly and seamlessly through the firearm restoration process. If $3,500 is within your budget as a retainer, call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

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

– LEWIS & DICKSTEIN, P.L.L.C.

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What Does a Criminal Defense Lawyer Do?

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What Makes a Highly Respected, Great Criminal Defense Lawyer?

The role of a defense lawyer is to protect the legal interests of his or her client and to advise and counsel a client during a pending case. This role encompasses all aspects of a client’s interests. A defense lawyer must step in between the government and the client and make sure the government acts properly and follows the rules and does not trample on a defendant’s rights. A defense lawyer should never shrink from a fight with the government, and must have the guts to go to bat for a client who is virtually helpless against the government without the lawyer. The government has almost unlimited resources, and without a fearless lawyer by his or her side, the government would be able to easily overwhelm a defendant. In short, the defense lawyer’s job is obtain the best possible result for the client including getting all charges dismissed if possible and doing what ever is necessary to help the client avoid jail or prison.

I’m Accused of Doing Something Pretty Bad. Will my Lawyer Still Do His or Her Best?

It is natural and human for a defense attorney to sometimes have an aversion to the alleged crime committed by a client. But the best lawyers know how to put that aside and do their best even for a client that may have done something wrong. In fact, the putting aside personal feelings comes naturally to the best lawyers, and they really don’t even have to think about it. Everyone has heard the familiar question put to attorneys: How can you defend someone like that? The answer hopefully given by a reputable and top-rated attorney is: That’s my job, and I have no problem with it. The best attorneys never internalize the alleged crime or harbor resentment against a client.

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A seasoned defense attorney has seen clients who have made terrible mistake. On the other hand, any experienced defense lawyer knows that prosecutor’s frequently try to gain an unfair advantage in court, police officers often exaggerate evidence or hide favorable facts, and judge often take sentences to the extreme and ignore mitigating facts. In any case, a great lawyer can find a way to fight for and protect each and every client, regardless of the allegations.

Why Are Lawyers Called Attorneys and Counselors?

Attorneys are more than people who fill out forms and file documents with the court. Of course, this is part of it, but as the title indicates, attorneys are also supposed to be the most trusted counselor and advisor a defendant can have. The best attorneys give moral support and comfort to people who are in perhaps the most difficult time of their lives, possibly facing jail and a loss of their reputation and their employment; maybe more. Doing a good job in court and fending off the government is what the public sees. What is unseen are the after-hours telephone calls, and the conversations giving comfort, hope, and advice on a personal level before and after the time in court. The attorney may communicate with the client’s family when the client can not communicate, and the attorney affirms the client’s humanity when the client feels the entire world is against them.

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Are Court-Appointed Attorneys as Good as Retained Attorneys?

There are many very good attorneys who take court-appointed cases. The question is whether they will spend the time and effort needed to do everything possible to defend a client in court and to counsel a client outside of court to the extent the client needs it. The answer is very often “no.” The attorney handling a court-appointed case has diminished resources compared to a retained attorney. They typically are not paid for many efforts they should be doing, such as doing thorough research on issues in the case, interviewing witnesses, and obtaining expert witnesses when they are needed, to name a few. Failure to do all that is necessary is a recipe for a bad result in court. Faced with a lack of funds and not being paid to do many critical tasks, a court-appointed attorney will naturally be tempted to arrange a plea bargain and wrap up the case quickly. This is not to say a court-appointed attorney will always “sell you down the river,” but it is true that they will be tempted to try to end the case as quickly as possible. This can never be in the client’s best interest. One thing is clear, the only way to chose the best lawyer for you is to hire someone privately.

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The Best Criminal Defense Attorneys and Counselors

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on felony and misdemeanor charges in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Southeastern Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will promptly contact you.

Get Help Now

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

– LEWIS & DICKSTEIN, P.L.L.C.

Marijuana Defense Attorneys

By | Marijuana Laws | No Comments

Is Marijuana Really “Legal” Now?

Well, yes and no. Let’s say it is a lot more legal now than it was. Much has changed in Michigan law with regard to regulation of marijuana use and sales since the passage of the Marijuana Legalization Initiative (2018. The new laws took effect on December 6, 2018, and now anyone 21 years old or older may possess, use, transport, or process 2.5 ounces or less without state or local criminal jeopardy, with certain exceptions.

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People may also grow up to 12 marijuana plants and store up to 10 ounces of the “crop” of grown marijuana in a locked container in their home. The marijuana being grown at home may not be visible to the naked eye to anyone in a public place, such as a sidewalk. Although marijuana sales are still not regulated or permitted, people may “share” or “transfer” up to 2.5 ounces to others who are at least 21 years old as long as the “sharing” or “transferring” is not advertised, done for money (i.e. sold), or publicly promoted.

What is Still Illegal or Otherwise Not Allowed?

It is still illegal to operate a car, boat, plane, ORV’s and snowmobiles under the influence of marijuana. This is much the same as with alcohol: it is not illegal to use it and then operate a vehicle of some kind, but you may not do so if you have had enough to impair your operation of the vehicle. Furthermore, smoking in public is still outlawed. Driving under the influence of marijuana is frequently called OWI or OWPD (operating with the presence of drugs).

It is also important to know that an employer may refuse to hire anyone who is found under the influence of marijuana or uses marijuana as allowed by the new law and may fire them if it becomes known that the employee has violated a company’s no-drug policies. Employers may also prohibit use of marijuana on company property. The new law does not change or limit any privileges, rights, immunities, or defenses covered by the Medical Marijuana Act.

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Private or public sales or “store-front” operations will not be allowed at least until December 6, 2019. The Michigan Legislature and the Department of Licensing and Regulatory Affairs (LARA) will decide when public sales are allowed and the rules for public sales. People wishing to engage in public sales must submit an application to the state to become a state-licensed retailer. Any sales by retailers will be taxed (10%). LARA is not obligated to issue any licenses until at least December, 2019.

Individual cities may still enact local ordinances and regulations which do not directly contradict the new law, but understanding exactly what activities are permitted is complicated. For example, cities may enact rules governing sales, licensing, annual fees for stores, the store location, the number of stores allowed, security measures and advertising methods, to name just a few. Fines for these violations may be imposed, and some of the local rules (and even the new law) include criminal penalties.

Do I Need a Lawyer to Understand the New Law?

It is true that marijuana is “more” legal than it was, but many people have gotten the idea after passage of the new law that “marijuana is legal” and they think they are essentially free to act any way they see fit. However, this simplistic approach can get you into trouble. Don’t think that because some things have changed that everything has changed. What is said above is only a basic summary of the more important points to know. The law covers many other activities and if you intend to be involved with marijuana, especially with regard to future sales or growing, you owe it to yourself to speak to an expert criminal lawyer about additional rules. The new rules are somewhat complicated, and it is always better to be safe than sorry.

If you are charged with a felony or misdemeanor involving marijuana or any type of drug, don’t take chances with your future, your employability, or your driver’s license, you need the best lawyer you can get to defend and protect you!

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Consult the Best Top-Rated Criminal Defense Law Firm to Advise You on Marijuana Laws

At LEWIS & DICKSTEIN, P.L.L.C., our highly experienced and successful defense lawyers can guide you through the new law and what remains of the old law. If you are charged with any kind of criminal offense, we can help you!

Our dedicated, experienced and zealous defense attorneys have successfully represented thousands of clients on felony and misdemeanor charges in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Southeastern Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. If you are charged Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

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

– LEWIS & DICKSTEIN, P.L.L.C.

Stalking Defenses Michigan – Why You Need a Great Criminal Attorney to Defend You

By | Stalking Charge Defense | No Comments

Stalking Defenses in Michigan and Why You Need a Great Criminal Attorney to Defend You

Stalking is a very serious charge, and one which can ruin your life if you are convicted of it. You need a highly experienced criminal defense attorney to defend against a staking charge. Judges and prosecutors will take these cases very seriously and your only hope is to do the same.

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Misdemeanor Stalking Charges in Michigan

To prove Stalking, a prosecutor must prove beyond a reasonable doubt that a defendant committed two (2) or more separate unwanted contacts which would make a reasonable person suffer emotional distress because they felt terrorized, frightened, intimidated, threatened, harassed, or molested.

Stalking can include: following or approaching someone, appearing at someone’s home or workplace, calling someone on a phone, sending email, texts, or mail to someone, or even leaving items on someone’s property. Stalking is a misdemeanor, and carries a jail term of 1 year in jail.

Aggravated Stalking is a Felony and Carries a Possible Five (5) Year Prison Sentence

To prove Aggravated Stalking, the prosecutor must prove that a defendant committed all the acts listed above for Stalking, and in addition to those acts also violated a court order, or violated a restraining order, or committed the acts against someone they’ve lived with or someone in their family. Aggravated Stalking can also be charged is the alleged victim is a person under 18 years of age, and the defendant was 5 or more years older than the victim at the time of the offense. Without expert criminal defense representation, jail and prison are often sentences imposed by judges in these cases.

How Can an Experienced Defense Attorney Defend Against a Stalking Charge?

An experienced criminal defense attorney will know how to challenge a Stalking charge. A defense will depend upon which type of actions a defendant allegedly committed. If it involves calling, texting, or emailing threats, for example, a highly experienced attorney will know how to obtain phone records and establish that you did not and/or could not have made the calls based upon records from the phone company or through a defense such as an alibi. If it involves following someone, again, your attorney can establish an alibi defense or if you did cross paths with a complainant, that it was mere coincidence and not intentional. A good lawyer can often show that the prosecutor is mischaracterizing an inadvertent or accidental contact.

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A more complex defense that only an experienced criminal defense attorney would know to raise and how to raise is to bring out testimony from the complainant proving that there was no real intent to frighten, threaten, harass or terrorize the complainant. This may involve establishing the complainant is a “hyper-vigilant” or maybe even a paranoid person through artful cross-examination. A seasoned criminal attorney also will know a number of experts in psychology who can testify that based upon the facts, the complainant was over-reacting or imagining things when they felt frightened, threatened, harassed or terrorized.

Another strong defense would be if your attorney could bring out testimony from the complainant or other witnesses that establishes the complainant is actually lying. A complainant may have many reasons for lying, and a reputable, experienced attorney knows how to show that a complainant is lying and what motives there may be for them lying. Motives could include extortion, a spurned lover situation, a desire to ruin someone’s reputation, cause them to lose a job, or a desire to negatively impact someone’s life for any imaginable reason.

Finally, in cases where the defendant cannot avoid a conviction, a seasoned, skilled defense lawyer may be able to convince the prosecutor to reduce the charges or persuade the judge not to impose jail or prison as a sentence.

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Top-Rated Defense for Stalking or Aggravated Stalking Charges

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on felony and misdemeanor charges in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Southeastern Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will promptly contact you.

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

– LEWIS & DICKSTEIN, P.L.L.C.

Does a Juvenile Adjudication Count as a Prior For Purposes of Expungements?

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An Experienced, Reputable Criminal Defense Attorney Can Ensure Juvenile Adjudications Will Not Interfere with an Adult Felony or Misdemeanor Expungement Motion

What Are Expungements and Do I Need a Lawyer?

Expungements are a clearing of your public criminal record. Although it is possible to attempt to expunge your record by yourself, it is not a good idea because most people are not successful without an experienced attorney and if you lose, you cannot try again for years. The expungement process is somewhat complicated and if the filings and procedures are not done perfectly it is unlikely you will be successful. Suffice it to say, you will wish for three years you had hired a good lawyer to handle it properly in the first place.

Michigan’s current expungement law states that a person with no more than 1 felony conviction and no more than 2 misdemeanor convictions may petition a court to expunge the felony conviction. If a person has only two misdemeanor convictions they may petition the court to expunge both misdemeanors. A person may only attempt one expungement, and expungements are not a right; whether an expungement is granted rests in the discretion of the judge. The judge will consider a person’s behavior since the conviction, as well as public welfare.

The law requires that 5 or more years have passed since the (1) Imposition of Sentence, (2) Completion of Probation, (3) Discharge from Parole, or (4) Completion of Jail Term, whichever comes last.

There are certain types of crimes that cannot be expunged whether they are misdemeanors or felonies. These include any crimes that carry a life penalty, certain sex crimes, child abuse, terrorism, human trafficking, felony domestic violence, using the internet/computer to commit a crime, and traffic crimes.

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Juvenile Court “Adjudications” and What Adjudication Means

If a case has been prosecuted through the juvenile court, the end result is not technically a “conviction.” It is called an “adjudication.” So, if you have a juvenile adjudication, will it count as a “prior conviction” in your expungement application? An experienced, seasoned criminal defense attorney will be able to explain to a judge that the answer is “no”!

The expungement statute, as described above, contemplates only prior adult convictions, not adjudications. In fact, there is no such thing as a juvenile “conviction.” Michigan cases on the subject have repeatedly stated that juvenile adjudications are not convictions. In addition, there is a separate law in Michigan which deals with juvenile adjudications. This makes it even more clear that juvenile adjudications are not applicable under Michigan’s separate, adult expungement statute.

Even though the law is clear, judges and prosecutors frequently take a position that a prior juvenile adjudication does or should prevent an expungement. An aggressive and zealous lawyer will stand up to prosecutors who try to stretch the law or judges who are inclined to deny an expungement based on a juvenile record.

What if I had a charge was already dismissed, under advisement or expunged?

In Michigan, certain offenses can be dismissed by operation of a statute. This is common in cases of drug possession, domestic violence, and in the case of youthful offenders. People often incorrectly refer to these dismissals as expungements. Under Michigan law, these dismissed cases still may count as convictions under certain circumstances. The definition of “misdemeanor conviction” now includes felony and misdemeanor convictions deferred or dismissed under certain liquor code provisions, drug court diversions (like 7411), veterans court diversions, Holmes Youthful Training Act (HYTA), domestic violence diversion (769.4a), parental kidnapping diversion and others. Having a prior case dismissed by operation of a court rule or statute does not preclude an expungement but it may make things more challenging.

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Top-Rated Expungement Attorneys in Michigan

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on felony and misdemeanor charges and have successfully obtained expungements for numerous clients in Oakland, Macomb, Wayne, Washtenaw and Livingston counties and throughout southeastern Michigan. We have a well-earned reputation for providing the highest quality aggressive representation, while showing empathy and care for each client. A lawyer needs to understand how important the result is for the client’s life and fights for the client accordingly. Call us today at (248) 263-6800 or fill out a Request for Assistance Form and we will promptly contact you regarding misdemeanor or felony expungement.

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

– LEWIS & DICKSTEIN, P.L.L.C.