Often when someone is facing a criminal charge it can be overwhelming and scary.  There are a lot of questions and unknowns but, hopefully, with a basic idea of what the pretrial proceedings involved, some of these fears can be eliminated.

First, after being arrested, there will be a District Court arraignment.  This will take place whether the charge is a misdemeanor or a felony.  A misdemeanor is a less serious crime than a felony.  In Michigan, a felony is a more serious crime that is punishable by more than one year in prison.  At the arraignment a defendant will be advised of the charge(s) and the maximum penalty of each charge, as well as, constitutional rights, appointment of an attorney (if one has not already been retained), and any conditions of bond, should bond be set (which in almost all cases, it will be).

If charged with a misdemeanor, at the arraignment, the defendant will enter a plea to each charged offense: guilty, not guilty, or stand mute (the court treats this the same as a plea of not guilty).  If a defendant pleads guilty or no contest (this means the defendant neither admits nor denies having committed the crime but accepts the punishment), the judge may sentence defendant right away or schedule a sentencing date. 

Second, should the defendant plead not guilty, a pretrial conference is set.  This is a meeting between the prosecutor and the defendant, plus his/her attorney in which the prosecutor may offer a plea bargain and a determination is made as to whether the case can be resolved without trial.  If it is determined that the case cannot be resolved with a plea, a trial date will be set.

If charged with a felony, at the arraignment, the defendant does not enter a plea of guilt or innocence.  A defendant is merely advised of his rights, as stated above, plus the right to a preliminary examination (a/k/a “prelim”) within 14 days of the arraignment.  A defendant may also waive the right to the preliminary examination in which case the defendant will be bound over to Circuit Court immediately.

Next, at the preliminary examination, the prosecutor must present evidence, including witness testimony, to prove that there is probable cause to believe that the charged crime(s) were committed by the defendant.  The point of this is that the prosecution is trying to provide enough evidence to bind the defendant over to Circuit Court for trial.  This burden of proof is much less than that required of the prosecutor at trial.  The defense can also present witnesses and cross-examine any of the prosecutor’s witnesses.  After all evidence is presented, the court may either bind the defendant over to Circuit Court on the charge(s), bind defendant over to Circuit Court on different charge(s), reduce the charge(s) to misdemeanors for trial in district court, or dismiss the charges.

Should the defendant be bound over to Circuit Court, a second, Circuit Court arraignment will be held whereby the defendant, again, will be advised of constitutional rights but will now enter a formal plead (guilty, not guilty, or stand mute) to the charge(s).  If the defendant pleads guilty the court will schedule a sentencing date.

Third, a pretrial conference is scheduled in Circuit Court.  Like the pretrial in district court, this is a meeting between the prosecutor’s office and the defendant and his/her attorney to determine if the case will go to trial or can be resolved with a plea bargain, should one be offered.  If the case cannot be resolved, trial will be scheduled.

Hopefully this brief overview of the proceedings that will take place before trial provides an idea of what should be expected at each stage.  If you or someone you know is facing any criminal charges, ease your mind and contact the Law Office of Mattias Johnson.

The first thing that any attorney should do when a client comes in after being charged with some form of Driving Under the Influence is review the traffic stop, the arrest, and the test results.  People in these situations have certain rights and a violation of these rights may allow an experienced defense attorney to get the charges dropped.

Far more often, law enforcement has done their job properly and a client must choose carefully how to proceed.  Certain cases where a client registered a blood alcohol level at or only slightly above the legal limit, may be worthwhile to take to trial.  Others, such as where the blood alcohol tests show results well in excess of the legal limit, should seek to limit exposure by entertaining the idea of a plea deal to a lesser charge. 

The ultimate plea deal for my clients in these situation is a plea to Operating While Visibly Impaired.  Unlike a plea to Operating While Intoxicated, Operating While Visibly impaired carries with it no mandatory license suspension and a lesser period of time under which the client will have a restricted license.  The fines are also significantly less as are the points added by the Secretary of State to that person’s license. 

Unlike in bigger cities who can utilize public transportation, people in Northern Michigan who lose their driver’s license for 30 days may also lose their job. If you or someone you know has been charged with any form of Driving Under the Influence, have them give The Law Office of Mattias Johnson a call and see if this lesser charge may be an option.

Commonly, a client will call me or stop by my office following an encounter with law enforcement and immediately note that their rights have been violated because the officer did not read the person their Miranda Rights.  Popular culture has given many of us a false sense of what our Miranda rights are and when they are relevant.  I would like to take this opportunity to briefly explain what your Miranda rights are, when they are triggered, and their practical application to your case.

The Fifth amendment to the United States Constitution contains many protections for an alleged perpetrator.  Particularly relevant in the context of Miranda Rights is the protection against compelled self-incrimination.  Essentially what this means is that law enforcement cannot rely on forcing you to admit to help prove their case against you.  Miranda Rights get their name from a 1966 Supreme Court case, Miranda v Arizona, wherein the Court held that an admission elicited from a suspect not informed of his rights was inadmissible as evidence in a subsequent trial.   

Unlike in the movies where the suspected perpetrator is read his rights as he is slammed into the hood of the police cruiser,  Miranda Rights are not typically triggered at the time of arrest.   Miranda Rights become relevant when a suspect is subject to interrogation while in police custody.  Interrogation, which elicits thoughts of torture and a dark room, is actually as simple as a state official (typically law enforcement) asking a suspect questions about the circumstances giving rise to the alleged offense.  While this is typically done at the police station, this can occur roadside or in the back of a police car.  Voluntary statements or admissions made prior to a reading of the Miranda Rights but not prompted by questioning are not protected by Miranda.  

The second trigger is police custody.  Police Custody essentially means that the suspect is not free to leave.  This often means that the suspect has been placed under arrest and that they are confined by some actions of law enforcement.  A temporary detention, such as being pulled over and questioned by a police officer, does not require you to be Mirandized, however, the underlying rights (silence, counsel) still exist and a person is free to exercise these rights.

A failure on the part of law enforcement to read you your Miranda Rights may be helpful to your case in some circumstances.  Evidence of your statements can be excluded from trial and this may be enough to tilt the scales of justice in your favor.  This does not necessarily mean that you will win your case (Miranda himself was retried and found guilty of horrific crimes) but it is certainly something that any experienced defense attorney will want to look into.

CONCLUSION

It is always important to remember that you have a constitutionally protected right to remain silent and right to an attorney.  Rarely, if ever, does speaking with law enforcement help your case.  Law enforcement is rigorously trained to use interrogation to help build their case. Even if you may feel like you are answering questions that have nothing to do with the alleged offense, you need to remember that all statements can and will be used against you.  In a case where direct evidence is lacking, your statements may just be enough to send you away in the eyes of a jury.  

I always counsel clients to invoke their rights early and often.  Do not make yourself the prosecution’s star witness.  Always speak with an attorney prior to making any statements to law enforcement even if you believe that they have nothing to do with your case.  If you believe that your rights have been violated, contact The Law Office of Mattias Johnson today let’s make this a fair fight.