Legal Reference Blog by Renee C. Walsh, Attorney

21. June 2007: Penalty for Carrying Concealed Weapons

The penalty for carrying a concealed weapon is defined in MCL 750.227 Concealed weapons; carrying; penalty. Violation is a 5-year felony.

Sec. 227.

(1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person.

(2) A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.

(3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.

21. June 2007: Possession Marijuana

This falls under MCL 333.7403(1)(2)(d) and is a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00 or both. Under MCL 333.7408a, there are also licensing sanctions for conviction. If no priors then the operator's license is suspended for six months with restricted license possible after 30 days. If priors, then suspended for 1 year with restricted license possible after 60 days. The license is surrendered at the sentencing hearing.

In order to prove this crime, the prosecution bears the burden of proving beyond a reasonable doubt that the person knowingly or intentionally possessed the substance which has been tested positive for marijuana.

21. June 2007: Prostitution Solicitation

Whether the punishment for prostitution / solicitation is a misdemeanor or felony depends on prior convictions. According to MCL 750.448 soliciting, accosting, or inviting to commit prostitution or immoral act; crime, a person 16 years of age or older who accosts, solicits, or invites another person in a public place or in or from a building or vehicle, by word, gesture, or any other means, to commit prostitution or to do any other lewd or immoral act, is guilty of a crime punishable as provided in section MCL 750.451. MCL 750.451 violation of §§ 750.448, 750.449, 750.449a, 750.450, or 750.462; prior convictions; penalty; definition, provides: ...More

21. June 2007: Possession Narcotics < 25 Grams

In Michigan, If you are charged with possession of narcotics < 25 grams, MCL 333.7403(2)(v), for example, this is a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000, or both. Depending on your criminal background, the prosecutor may dismiss this charge in exchange for an agreement to plead guilty to a lesser charge of possession which is a ...More

20. June 2007: Search and Seizure - Evidence

To search and seize evidence, reasonableness is again the mainstay requirement. In order to meet this requirement, a warrant is required unless one of the six exceptions applies. Consider however, that in order to get to the point of requiring a warrant, one must first have a reasonable expectation of privacy in the place searched or item seized, because without this, there is no Fourth Amendment right to protect. There is no expectation of privacy in objects held out to the public such as handwriting, smells, sounds, etc.; or in areas "held out to the public".

A valid warrant is one that is issued by a neutral and detached magistrate, based upon probable cause and particularly describing the place to be searched and items to be seized. The six exceptions to the warrant requirement are: ...More

20. June 2007: Search and Seizure - Arrests

The Fourth Amendment to the United States Constitution provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Translation: No unreasonable search and seizures and no warrant unless there is probable cause, an oath, and a particular description.

A foundational element for this right is that the individual has a reasonable and justifiable expectation of privacy because if not, then the government can intrude. Government intrusion into an are that is reasonably and justifiably private is a search, whereas, a seizure is the exercise of control over a person or a thing.

Michigan v Chestnut, 486 US 567 (1988) helps define what is a seizure. When a reasonable individual would assume that they are not free to leave, they are seized, and a police pursuit of a suspect is not such a seizure. There must be a physical application of force or a submission to a show of force. California v Hodari D., 499 US 621 (1991). One must consider ...More

14. June 2007: Michigan Ticket Scalping

In Michigan, selling tickets for more than their face value a.k.a. scalping, is a misdemeanor (90-days / $100 fine). See MCL 750.465(6). If people / entities are getting away with scalping tickets then it is because either the law just isn't being enforced in that particular county, or they have found the loophole and are exercising ...More

05. June 2007: Dealing with Prosecutors in the 30TH Circuit Hallway

I was so surprised years ago when I started a private practice and learned quickly the way the prosecutor and defense attorney communicate about cases right out in the open in the hallway where everyone can listen and hear the private information about defendants and their families.

I went to a pretrial hearing in defense of a 10-year-old black boy who was charged with a felony (breaking and entering or something along those lines). I could still count the number of cases I had at that time. The boy was from Lansing, Michigan and had no prior criminal history. (You're thinking of course, he was only ten, right?) He had been in the wrong place at the wrong time - with his older brother and his friends. The boys were invited over to a girl's house when her parents were out. She had other girlfriends over and the group was doing what 13 and 14-year-old kids do. My client was seen in the driveway looking out down the street. He was checking to see if the parents were coming home as they were expected any minute. The boys left along with my 10-year-old defendant. Later, the boys allegedly went back, entered through a window and stole various items. The prosecutor argued ...More

04. June 2007: To Spank or Not To Spank - Michigan Spanking

The question: Is spanking child abuse?
The answer: It depends on your state.

I live in Michigan and here, Michigan Compiled Law ( MCL ) 750.136b of the Michigan Penal Code defines child abuse. In MCL 750.136b(7) specifically exempts from criminal punishment a parent or guardian (or someone authorized by them) who takes steps to reasonably discipline a child, including the use of reasonable force. In other words, if you spank with reasonable force, you are in the clear.

The debate is clearly a personal one. As to myself, I have two children, ages five and two and never expect to and never would spank them. I prefer a firm voice and demeanor along with explanation over corporal punishment. This serves the higher purpose of maintaining my children's autonomy and dignity. Furthermore, it works! My children are happy, respectful, and well-disciplined both at home and in public. I have family and friends who spank their children and the children do not seem to be scarred. Yet, I wonder, what was it about their verbal communication that it was not effective enough to get the job done alone. It seems that getting anyone, including your child, to do or refrain from doing something is ...More