You Should Not Talk to the Police – 5th Amendment Right to Remain Silent

By | Criminal Defense Detroit MI | No Comments

From the moment you are accused of a crime, everything you say and do could incriminate you. The accused, especially when they are innocent, feel obliged to speak with police in an attempt to seem accommodating and guiltless. If you find yourself accused of a crime, the best option is to remain silent. Immediately call one of Michigan’s top law firms, LEWIS & DICKSTEIN, P.L.L.C. to represent you and leave the rest to your seasoned legal representation.

If I’m innocent, what is the harm in speaking with police?

The accused may worry that their refusal to speak will be mistaken for guilt. Whether guilty or innocent, do not speak to law enforcement. Even when innocent, being accused of a crime is anxiety provoking and may cause you to misspeak when telling police where you were at the time of the crime. Failing to remember your whereabouts with 100% accuracy will be perceived as guilty anyway! Additionally, an officer can easily misremember what you said later.

You should not talk to the police

The case of Miranda v. Arizona established that law enforcement officers must inform suspects of their right to consult with a lawyer, have a lawyer present during questioning, as well as the right to a court-appointed attorney if they cannot afford one. The Miranda rights also includes the warning that “anything you say, can and will be used against you.” It is important to note that the Miranda rights do not just say “can be used against you,” the right specifically says “can AND WILL be used against you.” What you say to the police will not be used to help you. At best, any statement denying guilt is self-serving and just creates an issue for a jury and not for the prosecutor when deciding whether to charge you. Given that there is no incentive, why speak? Speaking to police without a lawyer can only harm you and virtually never helps.

If I’m guilty, won’t I benefit from admitting guilt sooner rather than later?

The simple answer is no. Under the care of a seasoned attorney, you will almost certainly be able to receive a better outcome if you do not speak to the police. If something needs to be said on your behalf, a lawyer can and should communicate on your behalf. While police will try to persuade you to admit guilt, claiming that they will go easier on you if you admit guilt now, hold your silence. Anything you say makes the prosecution’s case stronger and your lawyer’s ability to help you reduced. Be very clear, there is nothing you can say that will help you and anything the police say to the contrary is an untrue and a ploy to induce you to incriminate yourself. Don’t fall for it!

Enlist the help of an Aggressive Attorney with a Track Record of Success

Oakland County Michigan - Criminal Defense Attorney

LEWIS & DICKSTEIN, P.L.L.C. is an award-winning law firm in Michigan that has represented thousands of clients. With a thorough understanding of state and federal law, we will investigate the facts of your case and protect your freedom. In the meantime, we encourage you to exercise your 5th amendment right to remain silent and leave the rest to us. Call us today at (248) 263-6800 or complete a Request for Assistance Form and an experienced lawyer will promptly contact you.

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Blood Testing in OWI Cases

By | OWI Cases | No Comments

The vast majority of criminal defense lawyers and OWI defense attorneys routinely accept the scientific reliability of a laboratory blood test report from the Michigan State Police crime lab. To be an effective advocate, an attorney must take a closer look at the drug analysis. Blood testing and analysis is a form of science called “forensic science.” The problem with forensic science and its political connection to law enforcement is that it often ignores the most basic scientific principles, such as the use of blind studies for example. Errors in laboratory testing are routinely ignored and results are often extrapolated from data and not proven to be true.

Metrology and Analytic Chemistry’s Connection to OWI Defense

Metrology is the study of scientific measurement. The MSP lab’s report is a statement regarding the scientific measurement of the amount of alcohol per milliliter in a blood sample. Surprisingly, many scientists with MSP know little to nothing about metrology even though they routinely give expert opinions on the issue. Metrology is concerned with the concepts of validity of the process, accuracy of findings, mathematics used in calibration, and the calculation of uncertain measurements.

Analytic chemistry is the science of using techniques and methods to separate, identify, measure and/or qualify matter. Instrumental analysis is a part of analytical chemistry. This type of analysis focuses on the use of technology to conduct the separation, identification and quantification of unknown substances. A highly experienced and skilled DUI defense attorney will not only look to the technique used to analyze the blood but also the method used, which are two distinct and equally important factors. A method is the procedure in which the testing is done and the technique is the manner in which the method is used. Both the technique and the method must be supported by valid science.

The Process of Blood Testing

There are three basic parts in the blood testing and analysis process: separation, identification and measurement. The Michigan State Police crime lab used chromatography for separation. Chromatography techniques can be gas or liquid. The type of chromatography used by MSP to determine the level of alcohol in a blood sample is called headspace gas chromatography. Identification is the process of recognizing what substances are detected in the analysis. Measurement is the process of identifying an unknown thing, a spectrogram in the case of blood analysis, comparing it to known data measurements to determine the type of substances identified. This would be similar to seeing a picture of an individual and then trying to find that person in a catalog of pictures of identified subjects.

Defenses to Blood Test Results in OWI Cases

The three basic scientific avenues of defense in OWI blood test cases are attacking the sample integrity, metrology used, and the testing instrument’s reliability. Any one of these three areas can be impacted by human error, equipment error or a combination of both. An effective and thorough defense in these cases requires obtaining and reviewing all of the necessary laboratory records, the calibrations, standards, controls and the results of all of the analyses done in the same analytic run. Additionally, the defense lawyer may decide it is necessary to get documentation regarding maintenance of the equipment and calibration records for subsidiary equipment such as scales, pipettes, etc…

Blood Draw for OWI Case

A jury in an OWI case must be reminded that there was a time in history when it was generally accepted that a person could be determined to be a witch if that person, while bound, would float or sink in water. An innocent person would sink and a witch would float. At that time, this test was considered highly credible and authoritative. The science today is only as reliable as our beliefs and is subject to imminently becoming outdated through future advances in technology and science.

Attorneys for OWI Defense in Michigan

The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. is highly skilled and knowledgeable in defending OWI cases using facts, the law, the constitution, medicine and science in formulating defenses. Any weakness in the government’s case is a strength in the defendant’s case. We leave no stone unturned in defending a client and advocating for the best possible outcome. If it is possible to get a charge dismissed or reduced, we will do what is necessary to win the case. Call us today for a free consultation at (248) 263-6800 or complete a Request for Assistance Form and a highly experienced criminal defense attorney will promptly contact you.

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Domestic Violence Defense Attorneys

By | Domestic Abuse Attorneys Michigan, Domestic Violence - Spousal Abuse | No Comments
Domestic violence cases are highly sensitive with many moving parts. Pleading guilty to domestic violence charges will impact your career, marriage, child custody, immigration status (for non-citizens) and potentially your freedom. In order to have the best possible chance of avoiding having a violent crime on your record, it is imperative that you hire domestic violence defense attorneys the moment an allegation is made against you.

Domestic Violence Defense Attorneys

Whether you are facing a misdemeanor domestic violence first offense charge or a domestic violence third offense felony charge, you need an aggressive and experienced team of attorneys to answer your questions and see you through the process. LEWIS & DICKSTEIN P.L.L.C. is an award-winning law firm in the State of Michigan who have helped thousands of clients craft a strategic defense for domestic violence related allegations, resulting in lesser sentences, dropped charges and acquittals at trial.

What if I’m innocent?

In many cases of domestic violence, there are many versions of a story. An experienced attorney who has experience representing clients charged with domestic violence understands that in some cases, a client is wrongly accused. Granting every client the benefit of the doubt, we listen to the facts of your story with empathy, respect, and open-mindedness. In some cases, the accuser is lying or the accused was merely acting in self-defense. If there is a way to get your charges dismissed or reduced, the team with LEWIS & DICKSTEIN, P.L.L.C. can help.

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What consequences do I face with a guilty verdict?

Under Michigan Penal Code 750.81, a first time offender faces a maximum penalty of up to 93 days in jail, a fine of $500 and up to 2 years of probation with various terms and conditions. A second offense misdemeanor charge carries with it up to a year in jail, a fine of $1,000 and up to 2 years probation. Once a demonstrated pattern is established in a third offense, you are looking at a felony, which is punishable by up to 5 years in prison, up to 5 years on probation, and a fine up to $5,000. Jail time and fines aside, you will face devastating loss in terms of future employability. Because of the long-term effects that a domestic violence charge has on one’s life, it is imperative that you enlist the help of Michigan’s toughest attorney teams, LEWIS & DICKSTEIN P.L.L.C. With our help, clients have received lesser punishments, including anger management or community service instead of jail time. In a multitude of cases, we have gotten domestic violence charges completely dismissed.

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I’ve been charged with domestic violence in Michigan. . . Now what?

Before pleading guilty or not guilty, it is vital that you proceed with reputable, experienced legal representation. How you plead can have a significant impact on the outcome of your case. IF you are accused of domestic violence and not yet charge, we may be able to help you avoid charges and being arrested. Before proceeding any further, you must enlist the help of one of Michigan’s finest law firms, LEWIS & DICKSTEIN P.L.L.C. Call us today for a free consultation at (248) 263-6800 or complete a Request for Assistance Form and an attorney will promptly contact you.

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Defending Shoplifting Charges in Rochester Hills Michigan

By | Shoplifting Charges, Shoplifting Defense in Rochester Hills | No Comments

When choosing an attorney to see you through shoplifting charges, you should prioritize experience and track record. Shoplifting is known in Michigan as Retail Fraud. If you are in need of reputable, aggressive, and trustworthy legal representation in the State of Michigan, your best choice is LEWIS & DICKSTEIN P.L.L.C. Offering the very best shoplifting defense in Rochester Hills, Michigan, you will be hard pressed to find another law firm that can offer the time, attention, reputation and effectiveness that we do. We employ a variety of strategies to protect our clients, fighting for a lesser sentence and dropped charges. Our attorneys have been nationally recognized for our success in successfully representing clients who have stood in your similar situation. We have a well-known and highly regarded track-record for getting these charges dismissed.

Does my behavior constitute shoplifting?

Many of us narrowly define shoplifting or retail fraud as stealing items from a retail store by hiding them in our bags or under clothing. The crime of shoplifting encompasses much more. The term also includes switching price tags to pay less for an item, returning stolen goods in exchange for cash, and using children to steal on your behalf. While it may not seem like an egregious crime, shoplifting leads to criminal prosecution and can result in jail time. In many cases, we see clients charged with retail fraud for leaving a store without realizing they were in possession of store property. These types of misunderstandings are common; however, the security personnel at the stores rarely accept even legitimate explanations and just assume the worst. The Retail Fraud Defense Team with LEWIS & DICKSTEIN, P.L.L.C. can help give your voice the credibility necessary for you to be heard.

Why do I need to hire an attorney?

Oakland County Michigan - Criminal Defense Attorney

Many first time offenders wrongly assume that their first offense will be met with leniency from the court. Retail fraud, also known as shoplifting, is taken seriously in the State of Michigan and we do not recommend facing charges with court-appointed or inexperienced lawyers or with lawyers who handle multiple areas of the law. You need a specialist to obtain the best possible result! With LEWIS & DICKSTEIN P.L.L.C. representing you, we will get an accurate and detail account of what happened, finding weak spots in the prosecution’s case to support a lesser punishment or dropped charges all together. Using police reports, witness statements, audio and video records and sometimes experts, a seasoned attorney knows how to strategize a defense that will clear your name, keep you out of jail and potentially keep a conviction off your record.

The best shoplifting defense in Rochester Hills, Michigan

You need an attorney who is experienced and well versed enough in law to find holes in your charges and to identify moments in the legal process where your rights may have been violated. In situations where the infringement of your rights cannot be proven, LEWIS & DICKSTEIN P.L.L.C. can fight for reduce sentencing options. A criminal conviction carries with it steep consequence, jeopardizing future employment and a black stain on your legal record. Often times, these consequences can be avoided. For the best shoplifting defense in Rochester Hills, Michigan, look no further than LEWIS & DICKSTEIN P.L.L.C. Call us today at (248) 263-6800 or complete a Request for Assistance Form and one of our highly experienced lawyers will contact you.

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Probation Department Wanted a Long Prison Sentence for Defendant. “Not So Fast,” Said LEWIS & DICKSTEIN, P.L.L.C.

By | Criminal Defense Detroit MI | No Comments

Probation Department Wanted a Long Prison Sentence for Defendant. “Not So Fast,” Said LEWIS & DICKSTEIN, P.L.L.C.

Last week, an attorney with LEWIS & DICKSTEIN, P.L.L.C. represented a client accused of violating his probation in one of Michigan’s circuit courts. While probation violations are not an uncommon occurrence, the probation department’s recommendation in this matter was especially severe. They were asking that the man be sent to prison for 3-15 years and, before the firm was retained on the case, the client had been told there was nothing that could be done. Because of his supposed failure to comply with probation, along with his atrocious record, he was going to prison.

The Shifting Burden

The criminal justice system is intended to operate free of prejudice and the accused are originally guaranteed the presumption of innocence. Lady Justice, however, occasionally peeks under her blindfold when it comes to those with long criminal records and she often glares down in anger upon those accused of violating probation. The presumption of innocence that exists during a criminal prosecution vanishes as guilt has already been established on the original crime. Probation is intended to be an alternative to jail, a chance to prove to the court that one has been rehabilitated and is unlikely to commit the same criminal act again. There is a sense that one’s probation is a privilege and that he or she only remains out of jail by the grace of the court.

Someone accused of violating probation is entitled to a hearing, though the deck is often stacked. First, the standard of proof required to find guilt on a probation violation is called the “preponderance of the evidence” test. This means that the judge will theoretically weigh each side’s argument evenly and rule in favor of the position he or she deems more likely to be true. This means that if the evidence shows only a 51% chance that you violated probation, you will be found guilty. It’s a far cry from the “beyond a reasonable doubt” burden placed upon the prosecution to prove guilt in the original case.

To make matters worse, some courts give great deference to their probation departments and the prosecutors. If an alleged probation violation is based upon an act or omission by the defendant and a factual dispute arises, courts almost always side with the probation agent absent tangible proof to the alternative. What this means is that the burden shifts to the defendant to prove that he or she did not violate probation.

“Nobody Would Listen to Me.”

In the case last week, LEWIS & DICKSTEIN, P.L.L.C. senior criminal defense attorney George MacAvoy Brown’s client was on probation for Operating a Motor Vehicle While Intoxicated 3rd Offense, his fourth felony. He had long criminal history that included many probation violations and he was being brought before the court as his probation agent claimed he had failed to comply with most of the conditions of his probation including testing for drugs and alcohol. Probation’s recommendation was that his probation be revoked and that he serve 3-15 years in prison.

The man knew he had a bad history but did not believe he had violated in the way the probation agent claimed. As it turned out, his first probation agent was not diligent about having him drug test or supervising any of the other conditions of his probation. When she resigned and moved across the country, the man was assigned to a new probation agent who violated him for his past failed compliance. He tried to explain that the first probation agent had never told him to test, or perform other required tasks, but his new probation agent would not listen. The man knew he had to go to court and explain the situation to the judge but was appropriately afraid that she too would not listen. He knew that his criminal history, including multiple drunk driving convictions and probation violations, might lead to an assumption of his guilt, that they would ignore his protestations, and that he would be sent to prison. The man called LEWIS & DICKSTEIN, P.L.L.C. They listened.

Criminal Defense - MichiganMr. Brown represented the man in court and gave a thorough presentation demonstrating conclusively that the defendant’s alleged violation arose from little fault of his own. While Probation argued that the man had a duty to correct his lax probation agent, Mr. Brown convinced the court that such an expectation is unreasonable. What probationer would insist that his probation agent be harder on him? Instead of sentencing the man to prison and revoking his probation, the judge merely continued his probation and even struck down Probation’s recommendation that he be fined $100.

Justice is Served

A text message sent by the client immediately after court.

The man walked out of that courtroom free, visibly flooded with relief. Aside from wanting to stay out of prison, something even more important had hung in the balance. His wife, who suffers from a number of medical ailments, relies on the health insurance provided by her husband’s job. Were he to be incarcerated that day, she would have lost both her husband and her health care. The consequences would have been catastrophic.

Sometimes you need someone to listen to you, to hear your side of the story. If you are facing jail or prison as a result of an alleged probation violation in Oakland CountyWayne CountyMacomb County or elsewhere in Michigan, call LEWIS & DICKSTEIN, P.L.L.C. at (248) 263-6800 or complete a Request for Assistance Form to speak with an attorney who can prepare the best possible defense. LEWIS & DICKSTEIN, P.L.L.C. will compel the court to hear your side and ensure that your rights are protected. LEWIS & DICKSTEIN, P.L.L.C. will listen to you.

Finding the Best DUI Attorney in Oakland County

By | DUI Defense Oakland County, Oakland County Criminal Defense, OWI Defense | No Comments

Finding the best DUI attorney in Oakland County is as easy as hiring LEWIS & DICKSTEIN P.L.L.C. As one of Michigan’s top rated, award winning law firms, you can rest assured that your DUI case is in the hands of qualified, aggressive, and caring attorneys who will stop at nothing to protect your rights, keep you out of jail and, hopefully, help you avoid a conviction. We take a “no shame approach” to each one of our clients facing DUI charges, whether this is your first offense or you face felony DUI charges. We are here to help you, not judge you.

Finding the Best DUI Attorney in Oakland County

What are the consequences for a DUI conviction?

A DUI conviction will impact every aspect of your life, which is why it is imperative that you invest in top legal representation. Depending on the nature of your charges and background, you can expect thousands of dollars in fines, extended probation, alcohol and drug testing, a suspended driver’s license, and the possibility of incarceration. A DUI charge can close doors professionally as well. Established in 1998, LEWIS & DICKSTEIN P.L.L.C. has helped thousands of clients facing DUI beat charges all together or settle for a less severe consequence. Many DUI cases are winnable, and your chances of winning are even greater when you enlist the help of one of Michigan’s best law firms. If you are looking for an Oakland County DUI lawyer, look no further.

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I’m a DUI Repeat Offender – What Lies Ahead of my Future?

If you are a repeat offender, we cannot stress enough the importance of hiring highly experienced attorneys with a track-record of winning in court to take your case. A third DUI conviction is considered a felony in the state of Michigan and is punishable by up to 5 years in prison and up to 5 years probation. The stigma of a felony DUI charge will follow you for the rest of your life and it can take years to get your driver’s license reinstated. LEWIS & DICKSTEIN P.L..L.C. will fight tirelessly for the charge to be dropped or reduced, sparing you from serving time in a state prison and maybe allowing you to keep your driving privileges.

LEWIS & DICKSTEIN – A Top DUI Defense Law Firm in Michigan

Year after year, LEWIS & DICKSTEIN P.L.L.C. continue to win awards for their superior representation of clients facing a variety of different charges. If you are looking for a DUI attorney, Oakland County is home to one of the very best. DUI cases are entirely winnable in many cases, but it’s up to the client to hire the law firm with an unparalleled track-record for achieving exceptional results.

Retail Fraud Attorney Novi in Michigan

By | Criminal Defense Detroit MI | No Comments

If you are searching for a retail fraud attorney in Novi, look no further than LEWIS & DICKSTEIN, P.L.L.C. Retail fraud, commonly referred to as shoplifting, is a serious offense in Michigan.

A criminal conviction could easily result in financial loss, a ruined reputation, emotional damage, lengthy and costly probation, and jail time. If you are currently facing charges for retail fraud and are looking for an experienced, aggressive team of attorneys in Novi, LEWIS & DICKSTEIN, P.L.L.C is ready to fight for the dismissal of all charges!

Retail Fraud Attorney Novi in Michigan3 degrees of Retail Fraud as Outlined by Michigan Penal Code

In the state of Michigan, the penal code outlines three degrees of retail fraud, which includes 1st degree, 2nd degree, and 3rd degree retail fraud charges. Make no mistake – each degree carries with it the possibility life-altering consequences if there is a conviction. Factors such as the price of the stolen item and egregiousness of the crime will determine the degree in which your crime fits. Unfortunately, some individuals who find themselves charged with a 3rd degree retail fraud charge figure that they will get off easy, since the severity of their crime was deemed third degree, only to find that they are still slapped with jail time, probation, and heavy fines by a judge. Worse than jail or probation is the impact of a “fraud” conviction when someone seeks new employment, a raise, government benefits, a loan or anything else where someone may check a person’s criminal history. Whether you are facing a retail fraud charge in the 1st or 3rd degree, you do not want to face your charge without a reputable attorney that has a proven track record of success.

What is included in retail fraud?

Being caught walking out of a store with an unpaid item is what comes to mind for many people when they hear the term “retail fraud.” Retail fraud includes a situation where the accused misrepresents the price of an item, by removing or replacing a price tag for example. Many young people especially do not realize the various acts that fall under the “retail fraud” umbrella. Inexperienced and ill-informed, many young people find themselves facing retail fraud charges due to ignorance regarding what actions fall under retail fraud in Michigan. It is also very common for highly educated adults with no prior record, an excellent reputation, and good job to find themselves on the receiving end of retail fraud charge. We have handled countless cases like this and we can help you through the process with dignity and respect and obtain an extraordinary result.

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What is at Stake with a Retail Fraud Conviction?

While hiring a seasoned team of attorneys may come at a cost, you must also consider the high cost of losing your case and facing a conviction. Whether it’s a 1st or 3rd degree charge, your future employment, financial situation, criminal background, and mental health is at stake. Perhaps you are reasoning that the cost of the stolen item is quite low or figure that since this is your first offense, the punitive measures taken against you will be quite minimal. For a defendant who is not an American citizen, you could face deportation, inability to re-enter the United States or difficulty attaining citizenship.

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Considering the impact that a retail fraud can have on a person’s future, we encourage you think twice before hiring a bargain lawyer who is weak, inexperienced or ineffective. Instead, enlist the help of LEWIS & DICKSTEIN, P.L.L.C., an experienced team that has helped thousands of clients over the years avoid unjust suffering as we fight for you in court. In other words, don’t gamble your future on a bargain lawyer. Call us today at (248) 263-6800 for a free consultation or complete a Request for Assistance Form and an experienced, effective retail fraud defense lawyer will promptly contact you.

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Drug Possession Charges in Novi Michigan

By | Criminal Defense Detroit MI, Novi Drug Charges | No Comments

In the State of Michigan, it is illegal to possess marijuana, cocaine, heroin, ecstasy, LSD and prescription drugs without a valid prescription. If you have been charged with drug possession and are unsure of what your next steps should be, do not delay in contacting LEWIS & DICKSTEIN, P.L.L.C. You do not have to face drug charges alone.

As one of the state’s most experienced and aggressive law firms, we fight charges alongside our clients and we have successfully represented thousands of clients in the state who have been in your situation. Why is it important to hire a reputable and experienced drug crime lawyer quickly? You are not convicted until proven guilty. You have a small window of time to enlist a top legal team and fight for your innocence so that a conviction does not follow you around for the rest of your life. Even if the evidence against you is very strong, there are often still ways to avoid a potentially life altering conviction.

Drug Possession Charges in Novi Michigan

How serious is my drug possession charge?

Make no mistake – Michigan has strict punishments in place for individuals charged with drug possession, possession with intent to sell, and other drug charges. Any drug possession charge should be considered serious. Even a misdemeanor carries up to 1 year in jail and up to 2 years of probation. A felony carries possible prison time and up to 5 years probation. Any drug conviction results in a loss of your driver’s license.

Unlike other states, Michigan has not decriminalized marijuana possession, which means that you will be charged with a crime, regardless of how much you had in your possession at the time of arrest. While most first time offenders receive probation, it’s important to know that many factors are considered before sentencing, including the type of drug in possession, the amount, the intended use, and prior drug and criminal history. Given that Michigan is particularly tough on drug crimes including possession of narcotics, there are no guarantees. If you are a medical marijuana patient and you are charged with a drug offense, your case needs the attention of an attorney with extensive experience handling cases related to the Michigan Medical Marijuana Act.

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Why do I need an aggressive, experience and successful attorney?

There are a few key reasons why you need to be represented by an experienced attorney. One reason is that seasoned attorneys including LEWIS & DICKSTEIN P.L.L.C. are experienced enough to know how to pursue a dismissal when appropriate and help clients avoid needless jail, lengthy probation, and onerous terms and conditions of probation. An inexperienced attorney or one that is not specialized in criminal defense, does not stand a chance of getting the same result. An experienced criminal defense attorney knows when to bring in lack of intent, reasonable doubt, and knows when to push for a lesser charge in a situation where the client is clearly guilty.

If you are charged with a drug possession offense or any drug related charge, call us today at (248) 263-6800 for a free consultation and confidential case evaluation. We will find a way to help you!

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Felony Prosecution, Part II: The Preliminary Exam

By | Criminal Defense Detroit MI | No Comments

The Preliminary Exam

In our last blog post about the felony process, we examined arraignment and the probable cause conference (PCC).

To recap, a felony prosecution must begin in district court to determine probable cause. If it passes that low threshold test, the case may be bound over to the circuit court for a new arraignment and pretrial conference. At the PCC, the judge will want to know the defendant’s wishes regarding the exam: hold or waive. Asking to hold the exam means it will be held on a later date, usually after one week. Waiving means there will be no exam and the case will be bound over to circuit court immediately.

What is the Preliminary Exam?

The preliminary exam, governed by Michigan Court Rule 6.110, is a procedural requirement of felony prosecutions mandating that the government must show there is probable cause that the defendant committed the crime for which he or she is accused. Put a different way, probable cause exists if there is enough evidence that a jury could find the defendant guilty. This is not the same as guilt beyond a reasonable doubt and losing an exam does not imply that the defendant is guilty of the underlying charge(s).

The exam itself is conducted like a small trial or hearing before a district court judge. Both sides have an opportunity to introduce evidence, call witnesses and cross-examine the witnesses called by the other side. At the conclusion, the judge makes a determination of probable cause and either dismisses the case or binds it over to circuit court.

Why Would I Hold It?

There are a number of reasons to hold an exam. Despite how low the probable cause threshold is, the government may have a weakness in its case and not survive the exam. Other reasons include finding out more about the government’s strategy, giving known liars an opportunity to put statements on the record that can later be used to impeach their credibility, and preserving any testimony of witnesses who may not be available at trial. 

Why Would I Waive It?

A preliminary exam may be waived if holding it would not provide any benefit to the defendant. There is some danger that a witness will appear for the exam and not at trial. This is an issue if the testimony is later introduced at trial and defense counsel does not have a chance to cross-examine the person in the presence of the jury. Holding the exam may also decrease the chances that the prosecutor will offer a favorable plea later on. In some cases, specifically those involving the alleged abuse of children, a preliminary exam where the complainants must testify could cause the prosecutor to be less willing or less able to work out a lenient deal in the future.  

Other Factors

Routinely, a felony case is set for exam at the probable cause conference with an understanding that it will not be held. Seasoned professionals, like the attorneys at LEWIS & DICKSTEIN, P.L.L.C., know how to use all the available tools to work out a deal for their clients. Sometimes an exam date is set while both the prosecutor and defense counsel work together towards a deal. If the government’s case is especially strong, a smart defense attorney will use this time to convince the prosecutor that the defendant should be allowed to plead guilty to a misdemeanor rather than the felony. 

The felony prosecution process is a daunting one and a conviction carries with it the possibility of jail time, fines, years of probation, and a lifetime of collateral consequences associated with being a felon. Before your case starts, you need an lawyer who knows the law, the prosecutor, and the court. The attorneys at LEWIS & DICKSTEIN, P.L.L.C. have decades of experience handling felonies in Oakland County, Macomb County, Wayne County, and throughout Michigan. They know when the prosecution should be compelled to hold an exam, when it is not beneficial to the client, and all the details that must be taken into consideration throughout a felony prosecution. If you have been charged with a felony, call (248) 263-6800 or complete a Request for Assistance Form and one of the attorneys at LEWIS & DICKSTEIN, P.L.L.C. will consult with you on your case. The best way to handle a felony charge is to begin the process with an experienced legal team in your corner, protecting your rights and guiding you through the complicated process that begins with the arraignment and probable cause conference.

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Plaintiff in a Criminal Case

By | Plaintiff in a Criminal Case | No Comments

The “plaintiff” in a criminal case is not what you might think. The complaining witness or alleged victim is not the plaintiff; the plaintiff in a criminal charge is the government.

A very common misunderstanding in criminal cases is who or what is the plaintiff. The plaintiff in any litigation is the person or party bringing the case to court. In a civil case, generally a lawsuit over money, the person who is requesting the money and starting the lawsuit is the “plaintiff.” In a felony or misdemeanor case, the “plaintiff” is the governmental agency that charges the defendant with the criminal offense. For a felony charge, the “plaintiff” is always the State of Michigan for a state charge and the United States of America for a federal charge. In misdemeanor cases, like domestic violence for example, the “plaintiff” is either the State of Michigan or the city, township or village bringing the charges.

The person who makes the complaint, often referred to as the victim, is referred to as a “complainant” and not a “plaintiff”. This is true even if the person who actually reported the incident was not the alleged victim. The complainant is considered a witness to the charge and has no more legal standing in court than any other witness.

Plaintiff in a Criminal Case

Does a complainant or victim have the ability to drop charges?

In criminal cases, alleged victims are often known to the defendant. In domestic violence cases, the defendant is frequently related to the complainant or in a dating relationship. In an embezzlement case, the defendant is the employee of the complainant. In home invasion cases, the complainant and the defendant are frequently acquaintances or neighbors. As a final example, in criminal sexual conduct cases, the complainant and the defendant are often legally related, dating or have a connection through school or work. In all of these cases, the complainant absolutely no power or authority over the charges. These individuals cannot bring charges, dismiss charges or reduce charges. Who can dismiss charges or reduce charges? Only the prosecutor has the power to change or dismiss charges.

What if the complainant or victim doesn’t show up in court?

A common misconception is that the complainant or victim must show up to all court hearings. In truth, the only time a victim or complainant must appear is when they receive a subpoena to appear and this generally only happens at trial or a preliminary examination. The complainant or victim can voluntarily appear at arraignments, pretrials and other types of hearings but their attendance is not mandatory.

If the complainant or victim fails to appear for trial or a preliminary examination, several things are possible. If that person’s testimony is necessary, the prosecution may seek to admit that person’s hearsay statements to the police, 911 dispatcher or other witnesses. Generally, hearsay is not admissible but there are exceptions. Another possibility is that the prosecutor will seek an adjournment and request a material witness warrant. If this happens, the complainant will be arrested and compelled by the court to testify or stay incarcerated. In the event that the court refuses to grant the prosecution an adjournment, the case may be dismissed “without prejudice”. If the case is dismissed “without prejudice” the prosecutor can simply re-file the charges at a later time. The decision of the prosecutor on how to proceed, whether to dismiss, and whether to re-charge is complex and the quality of the defense and defense lawyer will likely be critically important in the prosecution’s judgment. If a court is deciding on whether to let the prosecutor proceed with evidence, in the absence of the victim or complainant, the defense lawyer will be the only person standing between a conviction and a dismissal or acquittal. Don’t forget, cases can proceed without a victim. In every murder case for example, there is no living victim and yet the case proceeds to court.

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What if the complainant or victim wants charges dismissed?

Most prosecutors have no regard whatsoever for the wishes of the victim or complainant. On the other hand, some prosecutors will at least factor in the complainant’s wishes when deciding what plea bargain or sentence to offer the defendant or if a dismissal of charges is appropriate. Dismissals under these circumstances are few and far between in reality. The prosecutor frequently will try to understand the motive of the complainant in making a request for a dismissal, charge reduction or a sentence without jail. In some cases, the complainant may be motivated to make the request out of fear of the defendant, family pressure, or financial dependence. In some cases, the complainant may want the charges dismissed because the original allegations were false or exaggerated. The motives of a complainant are complex and a defense lawyer can frequently discuss these issues with the prosecutor while advocating for a lenient sentence, plea bargain or a dismissal of all charges.

The defendant must be very, very careful not to attempt to influence the victim of a crime or intimidate that person in any way. If the government believes that anything improper was done to influence a witnesses testimony, addiction criminal charges will likely be filed.

Complainant or Victim Seeing to Help or Hurt the Defendant

If you or someone you love is charged with a felony or misdemeanor offense and the complainant or victim desires or is trying to affect the charges for or against you, the sooner you realize the that you need professional help the better. The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has been successfully defending clients charged in state and federal court for decades. If you want superior representation and there is no room for errors and false promises in your defense, call us today at (248) 263-6800 or complete a Request for Assistance Form and a highly experienced Michigan Criminal Defense Lawyer will promptly contact you.

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