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Criminal defense

Criminal law establishes the classifications of crimes, how guilt or innocence is determined, and the types of punishment or rehabilitation that may be imposed.

Matthew Loren Espinosa | Oct 16, 2019

HOW TO UNDO A CLASS C ASSAULT CONVICTION IN TEXAS

What is an a misdemeanor class c assault? Class C Assault occurs if a person 1) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or 2) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. You can be charged for an assault by mere words, or simple physical contact that someone finds offensive or provocative. How can I get charged with so little evidence? It may be surprising to know that the police can charge you with an assault solely based of the words of an accuser and nothing more. The police can and it is common that they will issue a ticket or make an arrest without giving the accused a chance to counter the statement. Thankfully, the prosecuting attorney has the burden of proving the case beyond a reasonable doubt in court. Just because the police don't always collect evidence, doesn't mean that its not necessary for court. What is an affirmative finding of family violence? Why should I care? In addition to a fine for a Class C Misdemeanor, an affirmative finding of family violence could have the following disastrous consequences: 1) A prohibition on owning or possessing firearms and ammunition 2) Restrictions on trade or professional licenses 3) An enhancement on future family violence misdemeanors to felonies 4) Denial of child custody and visitation rights 5) Exclusion from applying for nondisclosure of records So what can I do to fix this? If you pled guilty to a misdemeanor class c assault while in jail, the law allows you to undo this for up to 10 days. This is not discretionary for the judge. The judge MUST grant your motion for new trial if you file it on time. If you pled guilty to a class c assault in jail, why would you risk having this charge follow you around for the rest of your life? Act before its too late, you only have 10 days to prevent a lifetime of horrible consequences

Michael Ricciardello | Oct 16, 2019

Felony Criminal Defense Process In Michigan

Arraignment on Felony Charges in a Michigan District Court An Arraignment is the first Court Hearing in the judicial process. At this hearing there are multiple goals that the Court seeks to achieve. The first is that the Court notifies the Defendant of the crimes that the prosecutor has brought against them. The Judge or Magistrate will either read the criminal complaint along with maximum punishments or if represented by an experienced criminal defense attorney, he or she will waive the formal reading of the criminal complaint. At that point a plea of “not guilty” will be entered on the defendant’s behalf. The hearing then moves to the issuance of bond or bail. Every Defendant's goal at a bail hearing should be that of a personal bond, meaning that you do not have to post any money to be released from jail. After a bond is imposed and posted, the defendant is released from law enforcement custody and is required to appear at all of the hearings set by the District Court. Probable Cause Conference All felonies begin within a District Court in the State of Michigan. The Probable Cause Conference (PCC) is the first opportunity for your experienced criminal defense attorney to begin negotiations with the District Attorney or Prosecutor. A PCC hearing is conducted before a District Court Judge and must be scheduled within 14 days of the arraignment. MCL 766.4 provides a roadmap for the Probable Cause phase of a felony in District Court. At a Probable Cause Conference, the accused’s criminal defense attorney and the District Attorney speak on numerous different subjects. The main ones being: • Possible plea agreements • Bail or bond compliance and petitioning for a bond modification if the defendant has not posted bail because of the high dollar amount set by the Magistrate. • Discussions regarding procedural aspects of the case and evidence to be admitted at the Preliminary Examination. Preliminary Examination Preliminary Examinations in Michigan District Courts are best described in MCL 766.4. A Preliminary Examination is best described as a mini trial. At this hearing, the prosecutor will be required to show that there is probable cause that the charged crime was committed and that it is more likely than not that the accused committed that crime. It is important to remember at this stage of the criminal proceedings; it is the prosecutor’s burden of proof. This means that the prosecutor through the evidence they present must show that probable cause exists. It is important to have an experienced criminal defense attorney at this hearing. This is because the accused’s criminal defense attorney will have an opportunity to cross-examine the prosecutions witnesses. After the Preliminary Examination hearing the District Court Judge will make a ruling. He or she will either find that probable cause exists and will “bind over” the defendant to Circuit Court for Trial. If the District Court Judge determines that probable cause does not exist against the defendant, upon motion of the defendant’s criminal defense attorney, the charges will be dismissed. Often, some but not all charges are dismissed, and some charges are bound over for trial. Being bound over for trial at Circuit Court does not mean you have been convicted of a crime, nor does it mean that a trial will automatically take place. Being bound over for trial simply means that, there is probable cause that a crime was committed and that the accused is the person who committed it. The defendant also has the ability to waive the Preliminary Examination and forgo having this hearing. This means that witnesses will not have to testify, and the prosecution does not have to meet their burden in open court. This is essentially consenting to binding the case over to Circuit Court for Trial. There are advantages and disadvantages of holding a preliminary examination or waiving your rights to a preliminary examination. Waiving any rights in the criminal justice system should only be done after careful consideration and review by an experienced criminal defense attorney. Pre-Trial in the County Circuit Court After a defendant is bound over to Circuit Court after a Preliminary Examination, a Pre-Trial Hearing is conducted in a Michigan Circuit Court. At a Pre-Trial an experienced criminal defense attorney will have the opportunity to address issues within the case with the prosecutor. At this hearing, potential motions to exclude or suppress evidence, motions to dismiss, or other motions will be discussed between the attorneys. Further, plea negotiations will be conducted. This will include ways to prevent a felony from entering onto the defendant’s criminal record or means of preventing any jail or prison time. Pre-Trials are an important phase of the criminal justice process that requires the best representation by an experienced criminal defense attorney in Macomb, Oakland, and Wayne County. Every case is different and presents its own unique set of facts and circumstances. Having the right attorney present can mean all the difference. Trial in a County Circuit Court A felony trial in a Michigan Circuit Court is arguably the most important phase of the criminal justice process. Although the large majority of felony cases are resolved without a trial it is nevertheless important to have an experienced criminal defense attorney ready to try the case if necessary. The 6th Amendment of the United States Constitution makes it a right for the criminal defendant to have a trial. There are two types of trials, either by judge or by jury. A jury trial is a trial conducted in front of 12 members of the community, who will decide your guilt or innocence after both the prosecution and the defendant through their experienced criminal attorney to offer evidence. At a trial the burden of proof rests with the prosecution, much like at a Preliminary Examination. However, at a felony trial the burden of proof is “beyond a reasonable doubt”. Reasonable doubt is the highest burden that the American justice system has. In short, reasonable doubt exists when a trier of fact (judge or jury) cannot say with fair certainty that a person is guilty, or a particular fact exists. Reasonable doubt is often defined as such doubt as would cause a reasonable person to hesitate before acting in a matter of importance. There are many parts to a felony trial in the Circuit Courts of Macomb, Oakland, or Wayne County. An experienced criminal attorney will have the trial mapped out well before entering the courtroom for trial. The decision to proceed to trial is a difficult one, and that decision should not be taken lightly. The decision to proceed to trial is ultimately up to the client. It further should be done carefully after consultation with an experienced criminal defense attorney. Resolving a case with a plea bargain or at trial both have risks, it is important to have the best representation at both phases to explain the consequences to allow for an informed decision regarding how to proceed with the case. Sentencing Phase If you plead guilty or are found guilty of a felony you will be referred to the probation department in the County for which you are convicted. The probation department will conduct what is called a Pre-Sentence Investigation Report (PSI). Their goal is to gain background information from you regarding your employment history, family history, where you live, any substance abuse issues, prior crimes, and more personal information. Their goal is to attain enough information to make a recommendation for your sentence to the Judge. On the sentencing date you will have the opportunity to review your PSI with your attorney and your attorney will make recommendations for sentence with the judge. The attorney is a great vehicle to achieve the best outcome. An experienced one will know the sentencing practices of the judge before you walk into the court room. An experienced attorney will also know how to navigate the sentencing and what to ask for to achieve the best possible result. After the Judge hears from the probation department, reads the PSI, and listens to Defense Counsel and the Defendant, they will fashion a sentence. The sentence will be within the Michigan Sentencing Guidelines unless substantial and compelling reasons exist to go above and beyond the guidelines. From there if the defendant is placed on probation they will set an appointment with probation to meet and review the probation order. Then the defendant/probationer shall follow the probation order so that there are no violations of probation and at the end of the term there is a successful termination of probation. If the judge at sentencing chooses incarceration, that means the defendant is remanded to the County Jail or the Michigan Department of Corrections to serve the number of months or years that the judge indicated in the sentence. Incarceration is the unfortunate result of some crimes but it can be avoided in most circumstances by taking a proactive approach, especially if it is the defendant's first time in criminal legal trouble.

Maury Devereau Beaulier | Oct 15, 2019

SPEED AND BURDEN OF PROOF FOR ORDERS FOR PROTECTION

EXPEDITED PROCEEDINGS. Since this type of physical conflict is the subject of a great many police calls and dangerous situations, the domestic abuse act treats OFP proceedings in an expedited fashion. That means hearings on allegations of abuse occur very quickly. If no Ex Parte Order has issued, the court must schedule a hearing to occur not later than 14 days from the date of the order for hearing. If Ex Parte (emergency) relief is granted, the hearing must occur within 7 days and Respondent may be served up to 12 hours prior to that hearing date. Continuances can be granted for up to five days unless good cause for a lengthier continuance is shown. Given the short timeline, retaining counsel immediately is imperative. LOW BURDEN OF PROOF In addition to having hearings scheduled with a limited ability to prepare, the court also applies a liberal construction to the proceedings in favor of the person alleging injury. Swenson v. Swenson, 490 N.W.2d 668, 670 (Minn. Ct. App. 1992). Decisions on contested allegations are also made based on the lowest threshold of proof in law, a preponderance of evidence. This means a court may issue an OFP if it finds one party more believable than another. Minn. R. Gen. P. 301.01 (b)3. In some counties like Ramsey County, cases are blocked to the same Judge if there is a companion family law case such as a dissolution of marriage, custody, paternity or CHIPS case. To present a case properly, it is important to contact and, in some cases subpoena, important witnesses to attend court and testify.

Maury Devereau Beaulier | Oct 15, 2019

Witnesses - Orders for Protection (OFP) in Minnesota

1. Who Can be a Witness in an Order for Protection (OFP)? Either party to an Order for Protection may call witnesses at the evidentiary hearing where allegations are being contested. If the individual is reluctant to testify they may be compelled to do so by having them served with a subpoena. Unfortunately, most domestic abuse occurs behind closed doors outside the view of the public. That means witnesses are often limited to the parties involved in the case and, in some instances, police officers who responded to the call for help. 2. What Can a Witness Testify About (OFP)? It is important to recognize that the evidentiary hearing in an OFP is meant to be an expedited hearing. That means the court will generally focus on the narrow allegations of the Petition. That can result in frustration for parties who find a Judge limiting the testimony of their witnesses. A Court may limit witness testimony for a number of reasons. First, any witness must testify regarding relevant details and events. That means the witness must testify regarding the events listed in the Petition or affidavit. Collateral details are often irrelevant. For example, character evidence of either the Petitioner or Respondent would not be allowed. Second, any witness must also have direct knowledge of the allegations in the petition. If the witness does not have direct knowledge of the allegations in the petition, the testimony can be excluded. Direct knowledge means the witness observed , heard or , in some way directly experienced the event. They may have observed abuse. They may have heard a sound that is consistent with abuse. They may have observed an injury or the demeanor of the alleged victim or abuser. Except in very limited circumstances, the testimony cannot be based on something the witness was told by another person. That is not direct knowledge and would often fall into a category of inadmissible hearsay. Third, a witness may also be limited by a Judge if the testimony is redundant in nature. In other words, many witnesses testifying to the same thing may be considered duplicative. 3. Can A Witness Be in the Courtroom? Generally, a court will exclude any witnesses from the courtroom until they have testified. This prevents the witnesses from hearing the testimony of others and conforming their statements to the evidence already presented. If the This is called sequestering the witness. If the Judge does not sequester witnesses prior to the commencement of the evidentiary hearing, a request by either may be made to do so. 4. Can Children be Witnesses? This is a tricky question. There is nothing in Minnesota Statutes that prevents a child from being a witness in an Order for Protection Proceeding. Often allegations of familial abuse occur between parents and spouses or between parents and minor children. That may mean that minor children were the only witnesses to the alleged abuse. Nonetheless, Judges are often reluctant to have children testify fearing that they may be re-traumatized by the experience or believing it improper to place the child in the middle between two feuding parents. Where the Court is reluctant to allow testimony of children, there may be other options available. Where domestic abuse is alleged to have occurred against a child, the Court may appoint Guardian Ad Litem (GAL). A Guardian Ad Litem is a person appointed to advocate in court for what they believe to be in the child’s best interests. As part of that role, they may speak with the minor child and/or review relevant records related to matter being resolved by the court. The GAL will then present their findings and recommendations to the court and a later hearing. The Court may also allow into evidence some out of court statements made to other witnesses by minor children. Generally, this would be considered inadmissible hearsay, but there are a number of exceptions to the rule against allowing hearsay and use of out-of-court statements may be a way to avoid requiring children to testify and traumatizing the children through the process. Minnesota Rule of Evidence 807 is a residual or “catch-all” exception to the hearsay rule. It provides that if certain procedures involving notice are followed and the Court finds sufficient guarantees of trustworthiness, out-of-court statements may be admissible as evidence regardless of the availability of the declarant. Similarly, two Minnesota statutes expressly provide for the admission of the out-of-court statements of children under the age of 10 regarding child abuse committed on them or committed on another child but observed by them. Minn.Stat. Sec. 260C.165 covers out-of-court statements regarding either abuse or neglect and applies to any CHIPS, foster care, or domestic child abuse proceeding or proceeding for termination of parental rights and Minn.Stat. Sec. 595.02, Subd. 3 applies to any court proceeding involving child abuse but requires that there be other corroborative evidence of the act if the declarant (child under 10) is unavailable as a witness. A Judge may also elect to conduct an in camera interview with the child witness. That means the Judge will speak to the child, often in chambers or in a closed courtroom where the only person allowed to be present are the attorneys. If any. This is rarely used and Judges are not often equipped with the training necessary to make such inquiries. 5. Can A Person Invoke Their 5th Amendment Right To Remain Silent? A party or even another witness may sometimes seek to claim their constitutional right against self incrimination. The rights against self incrimination may only be raised if the testimony that is requested has the potential to subject the speaker to criminal prosecution. In a case for an Order for Protection, there is some protection offered by the Domestic Abuse Statute. Minn. Stat. Sec. 518B.01, subd. 15 states that “any testimony offered by a respondent in a hearing...is inadmissible in a criminal proceeding.” Nonetheless, there are times when a witness, other than a party, offers testimony that might result in criminal prosecution. When that occurs, the witness may invoke the Fifth Amendment in order to protect themselves from criminal prosecution. That does not mean, however, their silence cannot be used against them in the civil proceeding. Though that may be true in a criminal case, when a party asserts the Fifth Amendment in a civil action, the Court may make an adverse inference when that party refuses to testify.

Kenneth Albert Vercammen | Oct 14, 2019

E568 In this issue: 1. Reduced DL suspension for DWI 2. Recent Cases: Police False Promise

1. Reduced DL suspension for DWI with New Expanding Use of Ignition Interlock Devices. 1. Reduced DL suspension for DWI with New Expanding Use of Ignition Interlock Devices. On 8/23/2019 new laws signed expanding the use of ignition interlock device for those convicted of drunk driving offenses and of refusing breath tests. The legislation (S824) also reduces the length of license suspension and forfeitures for these offenses. This is the most significant change to DWI law in 40 years. This law requires that first time offenders install ignition interlock devices (IID), at a cost to the offender. IIDs and suspensions from then on are based upon the severity of the offense. First-time offenders with BAC of: 0.08 to 0.10 - must install ignition interlock at own cost, use for six months. License suspension of 30 days. 0.10 to 0.15 - must install ignition interlock at own cost, use for six months to a year. License suspension of 45 days. Higher than 0.15 - must install ignition interlock at own cost, use for one year to 18 months. License suspension of 90 days. Mandatory interlock for refusal School zone DWI eliminated Drunk Driving - New Law effective December 2019 For a first offense of drunk driving, the offender's driver's license is to be forfeited until an IID is installed in one motor vehicle owned, leased, or principally operated by the offender, whichever the person most often operates. If the offender's blood alcohol concentration (BAC) was 0.08% or higher, but less than 0.10%, or the offender was convicted of operating a motor vehicle while under the influence of intoxicating liquor without a BAC reading, the current three-month license forfeiture is replaced with mandatory IID installation for three months; If the offender's BAC was 0.10% or higher, but less than 0.15%, the current license forfeiture of seven months to one year is replaced with the requirement that an IID is to be installed for seven months to one year; If the offender's BAC was 0.15% or more, the current license forfeiture of seven months to one year is replaced by four to six months license forfeiture and an IID is to be installed during the period of license forfeiture, as well as for not less than nine months or more than 15 months after the period of license forfeiture. For second drunk driving offenses, the current driver's license forfeiture is two years and for third and subsequent offenses, the forfeiture is for 10 years; the IID requirement is for one to three years. Under the new law, license forfeiture is reduced to one to two years for second time offenders and to eight years for third and subsequent offenders; the requirement that IID be installed in one motor vehicle owned, leased, or principally operated by the offender, whichever the person most often operates, is increased to two to four years. The license forfeiture period for first-time offenders of driving under the influence of drugs is not changed by the substitute. Further, installation of an IID is not required for first offenses of drugged driving. The provision establishing enhanced penalties for a conviction of driving while intoxicated in a school zone is removed. Refusing a Breath Test For a first offense, the committee substitute requires the offender's license to be forfeited until the person installs an IID in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, rather than requiring the current seven months to one year. The IID is to remain installed during the license forfeiture and for the following nine to 15 months. For a second offense, the bill decreases the period of license forfeiture from the current two years to one to two years. The offender's license is to be forfeited until an IID is installed and is to remain installed for two to four years. For a third or subsequent offense, the committee substitute decreases the license forfeiture from the current 10 years to eight years. An IID would be required during the license forfeiture and remain installed for two to four years. The provision establishing enhanced penalties for a conviction of refusing to submit to a breathalyzer occurring in a school zone is removed. The new DWI, refusal and interlock laws will be addressed at the NJ Bar seminar Handling Drug, DWI and Serious Cases in Municipal Court Seminar October 7, 2019 5:30PM-9:05PM NJ Law Center, New Brunswick, NJ Reserve now before sold out. Seminar ISBN :ON150718 https://tcms.njsba.com/PersonifyEbusiness/Default.aspx?TabID=1607&productid=37948443 2. Recent Cases: Police False Promise of no Jail and Leniency Required Suppression of Confession State v. L.H. The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant's statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court. (A-59-17)

Kenneth Albert Vercammen | Oct 14, 2019

E570 In this issue: 1. When a driver is unconscious 2. Free Will Seminar

1. When a driver is unconscious and cannot be given a breath test 1. When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant Mitchell v. Wisconsin. (a) BAC tests are Fourth Amendment searches. See Birchfield v. North Dakota,579 U.S. ___, ___, 136 S.Ct. 2160, 195 L.Ed.2d 560. A warrant is normally required for a lawful search, but there are well-defined exceptions to this rule, including the "exigent circumstances" exception, which allows warrantless searches "to prevent the imminent destruction of evidence." In McNeely, this Court held that the fleeting nature of blood-alcohol evidence alone was not enough to bring BAC testing within the exigency exception. Missouri v. McNeely 133 S.Ct. 1552 But in Schmerber v. California 86 S.Ct. 1826the dissipation of BAC did justify a blood test of a drunk driver whose accident gave police other pressing duties, for then the further delay caused by a warrant application would indeed have threatened the destruction of evidence. Like Schmerber, unconscious-driver cases will involve a heightened degree of urgency for several reasons. And when the driver's stupor or unconsciousness deprives officials of a reasonable opportunity to administer a breath test using evidence-grade equipment, a blood test will be essential for achieving the goals of BAC testing. (b) Under the exigent circumstances exception, a warrantless search is allowed when "`there is compelling need for official action and no time to secure a warrant.'" McNeely 133 S.Ct. 1552. P. 2534. (1) There is clearly a "compelling need" for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. First, highway safety is a vital public interest-a "compelling" and "paramount" interest, Mackey v. Montrym 99 S.Ct. 2612 Second, when it comes to promoting that interest, federal and state lawmakers have long been convinced that legal limits on a driver's BAC make a big difference. And there is good reason to think that such laws have worked. Birchfield 136 S.Ct., at ___. Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court. Id., at ___, 136 S.Ct., at ___. And such testing must be prompt because it is "a biological certainty" that "[alcohol dissipates from the bloodstream," "literally disappearing by the minute." McNeely 133 S.Ct. 1552 (ROBERTS, 2530*2530 C.J., concurring). Finally, when a breath test is unavailable to promote the interests served by legal BAC limits, "a blood draw becomes necessary." Id., at 133 S.Ct. 1552. (2) Schmerber demonstrates that an exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Because both conditions are met when a drunk-driving suspect is unconscious, Schmerber controls. A driver's unconsciousness does not just create pressing needs; it is itself a medical emergency. In such a case, as in Schmerber, an officer could "reasonably have believed that he was confronted with an emergency." 86 S.Ct. 1826. And in many unconscious-driver cases, the exigency w 2. Free Will Seminars and Speakers Bureau available to Middlesex County Groups. 2. Free Will Seminars and Speakers Bureau available to Middlesex County Groups. At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours. For additional information on the Legal Seminars, contact our Coordinator, Kenneth Vercammen's law office at (732) 572-0500, or fax 732-572-0030. Years ago the AARP Network Attorneys of the Edison/Metuchen/Woodbridge area several years ago established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. Now, Kenneth Vercammen and volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups. These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. The following Seminars are now available: Details on the 2 programs currently offered: 1. WILLS & ESTATE ADMINISTRATION- PROTECT YOUR FAMILY AND MAKE PLANNING EASY 2. POWER OF ATTORNEY to permit family to pay your bills if you are temporarily disabled and permit doctors to talk with family All instructors are licensed attorneys who have been in practice at least 25 years. All instructors are members of the American Bar Association, New Jersey State Bar Association, and Middlesex County Bar Association. All programs include free written materials. You don't have to be wealthy or near death to do some thinking about a Will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of state law. Topics discussed include: Who needs a Will?; What if you die without a Will (intestacy)?; Mechanics of a Will; Selecting an executor, trustee, and guardian; Proper Will execution; Inheritance Taxes, Estate Taxes "Living Will"; Powers of Attorney; Federal Estate Tax, Bequests to charity, Why you need a "Self-Proving" Will and Estate Administration/ Probate. Sample materials: Hand-outs on Wills, Living Wills/Medical Advance Directive, Power of Attorney, Probate and Administration of an Estate, Elder Law, Probate About the speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. He is the author of the American Bar Association's book "Wills and Estate Administration".