Legal Reference Blog by Renee C. Walsh, Attorney

16. February 2012: If You're Playing The Star Spangled Banner in Michigan, You'd Better Do It Right

If you're playing the Star Spangled Banner in Michigan, you'd better do it right, or you may be committing a CRIME! It is a crime to play it wrong under the Michigan Penal Code.

MCL 750.541 provides ...More

15. February 2012: Between Ages 17-20 Avoid Criminal Record with HYTA

The Holmes Youthful Trainee Act (HYTA) can be found at MCL 762.11 - MCL 762.16. This Michigan law allows a judge to place a youth between 17 and 20 who is alleged to have committed a crime and who has pleaded guilty to that crime, to be placed in prison or on probation, without a conviction to avoid a criminal record. (This law also applies to youths age 14, however, typically such cases are juvenile matters, which do not appear on a criminal record anyway, so HYTA status would not be sought.)

This privilege excludes ...More

15. February 2012: Untried Charges Against Michigan Inmates

When the department of corrections receives notice of an untried warrant, indictment, information, or complaint against a Michigan inmate, setting forth a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days.

The 180 day period starts ...More

08. July 2011: Expungement

Expunging criminal records is addressed in Michigan Public Act 1965, entitled, Setting Aside Convictions, and codified at MCL 780.621 to MCL 780.624. According to the former law, a person is eligible to file an application to expunge a criminal record if they have been convicted of not more than one criminal offense; it has been at least five years from the conviction or imprisonment; and the conviction was not for a felony / attempt for which the maximum punishment is life imprisonment, a crime involving rape or a traffic offense. Under the current law, a person who is otherwise eligible to apply for expungement is not rendered ineligible by virtue of being convicted of not more than two minor offenses (a misdemeanor or ordinance violation for which the maximum permissible imprisonment is 90 days, for which the maximum permissible fine is $1,000, and that is committed by a person who is not more than 21 years old) in addition to the offense for which the person filed an application. (SB 159; eff. 6/23/11).

The application fee is





...More

03. November 2009: Scam - Collaborative Divorce Settlement Party Needs Counsel to Collect Settlement Funds - Fraud

I received the following inquiry today:

"My name is Judith Foster. I am a contacting your firm in regards to a divorce settlement with my ex husband Paul Masato) who resides in your jurisdiction. I am currently on assignment in Japan. We had an out of court agreement(Collaborative Law Agreement) for him to pay $448,450.00 plus legal fees. He has only paid me $44,000 since.
...More

24. July 2009: Maryland Interception of Communications

Question:

"I have a question relating to the "expectation of privacy" issue. My father was a resident of a nursing home in which the door to his room was always open so anyone could come in at any time. Would it be legal to record conversations made through his speakerphone? The other party knew where my father was and that he was on the speakerphone, but did not know the conversation would be recorded. This is in Maryland, a one-party state.

Thank you!" ...More

18. July 2009: Michigan Still Has Old Laws on Books

The people of Michigan represented by the Michigan Legislature still have old laws keeping the citizens moral and righteous on the books. They have been codified since 1931 in the Michigan Penal Code. ...More

23. June 2009: How do I turn myself in on a warrant?

Question:

"I received a misdemeanor malicious destruction of personal property less than $100 and never finished probation in Michigan. I called and they have a warrant for me. I want to turn myself in. Will they take me to jail right then and there?" ...More

29. May 2009: Michigan Leaving Child Unattended in Vehicle

Did you know that it is a crime to leave a child unattended in a vehicle if they could be harmed? I suppose that I knew that if anyone ever saw me do this, I could get a visit from Child Protective Services, but I really hadn't thought that my actions could rise to the level of a crime. ...More

28. May 2009: Michigan Rape

I have had numerous 16 year-old young women inquire as to whether their boyfriends will be in trouble with the law for having sex with them when the women were age 16. As such, I am writing this article about Michigan's statutory law on rape, codified at MCL 750.520a. ...More

29. April 2009: Michigan "7411" Drug Offense Diversion Law

MCL 333.7411 is a law was proposed to allow judges to use their discretion to provide a non-criminal sanction for first-time offenders who commit less serious drug crimes. People v Ware, 239 Mich App 437, 441, 608 NW2d 94 (2000). It is a law that can be used as a get out of jail free card for a person charged with certain drug offenses. If the candidate is eligible for application of the law to their case, under certain circumstances, the person can be discharged from probation and their case can be dismissed without a conviction entered on their criminal record. ...More

15. April 2009: Michigan Allows Medical Marihuana

The Michigan Medical Marihuana Act became effective December 4, 2008. On that date, the people of the State of Michigan found and declared, based in part upon the finding of the National Academy of Sciences' Institute of Medicine March 1999 report, that there are beneficial uses for marihuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions. Since approximately 99 out of every 100 marihuana arrests in the United States are made under state law, rather than under federal law, changing state law would protect from arrest the vast majority of seriously ill people who have a medical need to use marihuana. Even though federal law prohibits any use of marihuana except under very limited circumstances, states are not required to prosecute people for engaging in activities prohibited by federal law. for the health and welfare of its citizens, Michigan joins Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington as states which do not penalize the medical use and cultivation of marihuana. ...More

06. April 2009: Disorderly Conduct

Michigan law codifies the crime of disorderly conduct at MCL 750.167. The law reaches persons who neglect their family, prostitutes, peeping toms, persons who illegally run a business, and those who are drunk, indecent or obscene, vagrants, beggars and loiterers. There are also sections of the law that apply to persons hunting while intoxicated and those who are disorderly where there is a funeral service. ...More

22. August 2008: Appearance at Arraignment Can Be Waived

Did you know that appearance at an arraignment can be waived so that the defendant will not be required to be present in court until the pretrial hearing? ...More

12. February 2008: What is an Arraignment? Is a lawyer needed?

According to Black's Law Dictionary, an arraignment is a procedure whereby the accused is brought before the court to plead to the criminal charge against him in the indictment or information. The charge is ...More

03. November 2007: Michigan Criminal Law Statute of Limitations

The Michigan statute of limitations on crimes is found at MCL 767.24. It provides different periods of limitation based upon the crime as follows: ...More

15. October 2007: Urinating in Public - Michigan

The Michigan Penal Code does not specifically identify urinating in public as a crime. This crime is frequently at the local level by for example, the local cities, villages, or townships. Michigan does have a statute in the penal code against indecent exposure. MCL 750.335a states: ...More

08. August 2007: Habitual Offender

The Michigan habitual offender statutes provide that individuals convicted of 'a felony, an attempt to commit a felony, or both,' who subsequently commit another felony, are subject to sentence enhancement. MCL 769.10-769.12. If the prosecutor intends to seek enhancement of sentence, he must ...More

02. August 2007: Michigan Attempt to Commit a Crime

The crime of attempt reduces the punishment. In some cases this does nothing. Consider a juvenile defendant age 12 charged with a 5-year felony. At the pretrial, the prosecutor offers an attempt with the selling point being that the maximum punishment is reduced. This is essentially an empty offer as to this defendant because ...More

30. July 2007: Larceny

This crime consists of a taking, and carrying away, of tangible personal property, of another, by trespass, with intent to permanently deprive. The property must be personal property, it must be tangible, and it must have some value. The property has to be taken from someone with possession. If the taker has custody of the item, as where the item has been borrowed and then never returned, then it is not larceny. On the other hand, if the property is lost or mislaid, it could be larceny because it is regarded as constructively in the possession of the owner. Abandoned property has no owner and cannot be the subject of larceny. Furthermore, ...More

12. July 2007: Expunging Criminal Records - Michigan

Expunging criminal records is addressed in Michigan Public Act 1965, entitled, Setting Aside Convictions, and codified at MCL 780.621 to MCL 780.624. According to the law, a person is eligible to file an application to expunge a criminal record if they have been convicted of not more than one criminal offense; it has been at least five years from the conviction or imprisonment; and the conviction was not for a felony / attempt for which the maximum punishment is life imprisonment, a crime involving rape or a traffic offense.

The application fee is ...More

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