FAQ’s in Criminal Law Cases
In criminal defense cases, clients and their families always have questions. From the most serious felony cases down to local misdemeanors, clients are anxious and need guidance and reassurance. Sometimes, there are clear answers and sometimes there aren’t. Either way, you need an attorney who can explain the options and the possible outcomes for your case. Here are some questions we get on a regular basis from clients and family members in criminal matters.
How much time am I looking at having to do?
Can I get probation?
These are the two most commonly asked questions we receive from clients in criminal cases, regardless of whether they are facing a misdemeanor or a major felony. The answers are complex, and are dependent on a number of factors including, but not limited to prior criminal record, severity of the charges the client is facing, whether the client is on parole or probation, what the advisory sentencing guidelines are, and the discretion of the judge.
Below are some of the reasons that these factors, and others are important in trying to answer this question.
Severity of the Charges – Every criminal offense enumerated by statute in Michigan establishes the maximum possible penalty for that offense. For example, a Felonious Assault is a Class F felony punishable by a maximum of 4 years in prison, by statute. As another example, Possession with Intent to Deliver Cocaine 50 – 499 grams is a Class B Felony punishable by up to 20 years in prison. However, that does not mean that should you be convicted of the offense, that is the amount of time you will serve. The statute establishes the maximum possible penalty, not the actual penalty, and a number of Court cases and other statutes impact what penalty the Court may impose upon a person who is convicted of any criminal offense.
Prior Criminal Record – If the client has been previously convicted of a felony or qualifying misdemeanor offense, those prior convictions can have an impact on the ultimately imposed sentence. Each offense is subject to calculation of advisory sentencing guidelines. The Michigan Criminal Sentencing Guidelines were mandatory (the Judge had to impose a sentence within the guidelines in all but the most extreme cases) until 2015, when the Michigan Supreme Court overruled years of case law and determined that they should be advisory. That means that the Courts must account for the sentencing guidelines, but the Judge does not have to follow them. One aspect of the sentencing guidelines, and that Judge’s consider in discretionary sentencing, is prior criminal history. If you have no priors, the Court is more likely to consider a lenient sentence in the majority of cases, though, again, much is dependent upon the facts of each individual case. However, if a client has a long history of felony and misdemeanor offenses, or a short, but severe history, the Court is more likely to consider a heavier sentence as far as a minimum term.
Advisory Sentencing Guidelines – The Courts frequently look to the Michigan Criminal Sentencing Guidelines when determining an appropriate sentence for a criminal matter. The Guidelines provide what are considered to be reasonable minimum sentences using grids for each different Class of felony case. There are nine (9) grids that can be used, M2 through H, depending on the maximum possible penalty for the offense committed. The Guidelines assess points on a grid for prior record (what you have done in the past) and offense variables (what happened in your case now). The grid accounts for 27 total possible point assessments that can be applied. Which ones apply are a matter of question which the attorney and the prosecutor assigned to the case would have to argue before the Court. The final guidelines are a factor considered by the Court when determining the most appropriate sentence to impose in a particular matter. You may have heard that the Guidelines are mandatory, and that the Court must impose a sentence consistent with the sentencing guidelines. That was true until 2015, when the Michigan Supreme Court indicated that Michigan’s mandatory sentencing scheme was inconsistent with the United States Constitution, and ruled that they were advisory only.
Current Parole of Probationary Status – If a client is currently on parole or probation, a conviction for ANY offense can have collateral consequences for your parole or probationary status. If you are on parole and pick up a new case, you need to inform your agent. Failure to do so within the parameters of your release agreement could lead to additional violations. Depending on the severity of the violation, your parole or probation agent may institute revocation proceedings against you, and you may get “flopped,” and have to finish any remaining term you are serving on your prior case. If you are on parole, you can be sent back to the Michigan Department of Corrections to complete your tail, or the remaining time on your prior sentence. If you are on probation, you can be sent to complete the remainder of your probation in your local county jail, up to the maximum of twelve (12) months. Any such sentence on a parole or probation violation can be, and often is, imposed as a consecutive sentence, meaning, the client must serve that sentence before they start serving time on the new matter. That can lead to very lengthy prison or jail sentences.
Judicial Discretion – For nearly two decades, the Michigan Criminal Sentencing Guidelines were the primary control mechanism in sentencing of offenders. The Judge’s sentence would be considered reasonable and appropriate, as a general rule, if they imposed a minimum sentence that was within the Guidelines range. In order to impose a sentence that departed, or was different, than that imposed by the mandatory guidelines, the Court had to have substantial and compelling evidence that was not accounted for by the guidelines to depart. Now, regardless of what the Guidelines impose, the Court’s sentence only has to be reasonable. The Guidelines were returned to their discretionary status in 2015, giving Judges and Courts far more latitude in determining criminal sentences. The increased discretion granted to Judges means that knowledge and experience with your sentencing Judge is of significantly increased importance.
The bottom line is, while an experienced attorney can provide upfront guidance and set some maximum and minimum parameters, it is becoming increasingly difficult to predict final outcomes of criminal matters in Michigan. A good criminal attorney can provide you with general parameters, but any possible sentences that could be imposed would have to be discussed with your attorney, and only after they know everything about the client’s criminal past, if any, and are well advised on the facts and circumstances of your case.
Is there any way that I can keep this off my record?
The answer is, yes, in some circumstances. There are a number of ways to try and shield a client from having a criminal conviction on his or her record, but not everyone can qualify. There are a number of special available sentencing statutes that can be used to keep a conviction off of a person’s record. For example, the Holmes Youthful Trainee Act is a special sentencing statute that is available for young adults between the ages of 18 and 24 at the time they committed a criminal offense, that allows them to keep those convictions off their record, so long as they can complete the terms of their sentence without any violations, and the offense they were convicted of qualifies. Another example, if you are charged with a misdemeanor domestic violence, or an assault and battery related to a domestic incident, and you have not been convicted of a DV in the past, you may qualify for a special sentencing statute that applies to DV offenders that will keep the DV off your record.
While there are other special sentencing statutes, known as delayed sentences, that can apply to certain cases, all hope is not lost if you could not qualify for such a special sentencing statute, or it was not extended to you. You may also be eligible, or may eventually be eligible, to have your case expunged. There are certain statutory requirements that must be met to be eligible for an expungement, and certain types of offenses cannot currently be expunged. However, a client who has a conviction, or who is facing the possibility of a conviction, should talk to their defense attorney about whether they may be eligible for an expungement down the road, should you be convicted. Don’t box yourself into a corner that prevents you from clearing your criminal history down the road, because an attorney did not advise of the consequences of your conviction, and the impact of a conviction on your ability to seek an expungement.
Besides being on probation or incarcerated, are there any other bad things that will happen if I am convicted?
The answer is, it depends.
There are a number of what we commonly refer to as “collateral consequences” to a criminal conviction.
Persons who are not United States citizens, and who are convicted of certain misdemeanors and felonies that are classified as “crimes of moral turpitude,” are subject to deportation should they be convicted.
Some felony cases committed with a motor vehicle can be reported to the Secretary of State, which can result in substantial and significant consequences with regard to a client’s privilege to drive an automobile.
A final example, if a person is convicted of a crime involving possession of a controlled substance, either a misdemeanor or a felony conviction, that individual can be considered ineligible for FAFSA government funded student loans.
To determine if any of these potential collateral consequences, or others that exist, but which are not discussed here, are applicable in your case, give us a call and let us know talk with you about your matter.
We can provide advice and guidance on how to deal with or avoid these potential consequences.
Should I tell the police my side of the story when they ask me to give a statement?
No. The police are not your friends when you are under arrest. The officers are doing their job when they read you your rights and want you to make a statement to them about what happened.
The reason they are doing that is because they know almost anything that you say to them at that point can be used against you, even if it is a complete denial.
Remember, anything you say at that point is going to be used against you. Period.
When you are asked to give a statement only say the following: “I want my lawyer, now.” Do not equivocate. Do not say it like it might be a question. Just say “I want my lawyer, now” and give them our names.
The Fifth Amendment protects your right to silence, and allows you to request a lawyer before or during any questioning by the police.
Make sure you remember to exercise your rights, and if you are in custody and the police want you to talk, just say “I want my lawyer, now.”
The police searched my car/house but they didn’t have a warrant. Can they do that?
The answer to this question is, first, complex, and second, completely dependent on the facts and circumstances of your case. That being said, as a general rule, the Constitution requires that police have a search warrant before they search a home or a car. However, there are a number of exceptions to the requirement that the police obtain a warrant before they can search a car or a home for evidence of a crime. Further, usually houses have more protection than motor vehicles or trucks.
There are certainly occasions where a motion to have the case thrown out because of police misconduct may be appropriate. In order to determine whether such a motion may be appropriate in your case, we would need to sit down with you, review the facts and evidence, and advise you accordingly.
Criminal law and procedure has so many more issues, we can’t possible summarize them all, or discuss them on this frequently asked questions page. These, however, are the questions or scenarios that seem to come up most when we discuss criminal cases with clients. We have expertise in all aspects of criminal law. Nothing you can tell us will come as a surprise, or will present a scenario that we don’t have experience handling. We would be happy to sit down with you to discuss your case, and to represent your interests in Court.
Grosse Pointe Farms, MI 48236