Consent To Search – When To Deny? 

A consent to search occurs more often than not. Many people believe that if they agree to consent to search it may provide for a better outcome with the police officer. That is not always true, and it is best to never consent to search. The State or City Prosecutor are the only individuals who can make deals once criminal charges are issued. Police cannot do that.

If the consent to search is properly given then police will not need a warrant to effectuate the search. However, when consent to search is denied Police are not allowed to search, unless the situation falls within one of the several narrowly defined exceptions to the search warrant requirement.

What is required in order to provide or obtain consent to search? In order to be proper the consent to search must be voluntary (or freely given), specific, and unequivocal. Therefore, it must be free from coercion. The court will look to specific factors and the totality (complete set) of circumstances to determine whether the consent to search was proper. The following are factors courts review in determining that conclusion:

[W]hether defendant was a youth; whether defendant was uneducated or conversely, well versed in the law; whether the information on which the investigation was based was unlawfully obtained; whether defendant was given his Miranda rights; the length of the detention and the length and nature of the questioning; the use of physical threats; the familiarity of the surroundings; defendant’s freedom of movement during the questioning or search; defendant’s cooperation or lack of cooperation in the search; the number of officers present during the interview and search; whether the officers told defendant that he did not have to consent to the search; and whether the officers suggested that defendant give them the thing seized. See United States v Hearn.

It is always important to remember that you do not have to consent to search when requested by an officer. You are even free to change your mind if you initially consented. At the end, the consent to search will boil down to the circumstances and facts that are present within the individual case. This is why it is essential to never consent to search, and instead force law enforcement to perform their job.

By not providing your consent to search you are maintaining your constitutional right to be free from warrantless searches. This can also in-turn provide a better or more hopeful case for you and counsel once you are at the formal setting of the criminal process depending upon the circumstances of your case. Always know the law, maintain your rights, and lawyer-up with Josh Jones. He has your back.

DO NOT RELY ON THESE LEGAL OPINIONS AND OBSERVATIONS WHEN REPRESENTING OR ATTEMPTING TO REPRESENT YOURSELF IN COURT. THESE ARTICLES ARE NOT MEANT TO COMPENSATE OR REPLACE LEGAL REPRESENTATION IN ANY FASHION. YOU SHOULD AND MUST ALWAYS CONTACT AN ATTORNEY AND DISCUSS WITH HIM OR HER THE CONSEQUENCES OF ANY AND ALL IDEAS, STATEMENTS, OPINIONS, EXPRESSIONS OR OTHERWISE STATED ON THIS SITE. ALWAYS LAWYER-UP!

REMEMBER, Josh Jones handles all criminal matters (felonies or misdemeanors), expungements, license restoration, traffic tickets, and probation violations, and specializes in marijuana law.

Michigan Drunk Driving [DUI/OWI] – Quick Overview

Michigan Drunk Driving Law provides that if you operate a motor vehicle in the State of Michigan with a blood alcohol level at .08 or above, you can be charged with Operating While Intoxicated (OWI). See MCL 257.625. This offense is classified as a 93 day Misdemeanor, 6 points on your driving record and restricted driving privileges for up to six months, the first 30 days suspended. The court can also impose a term of probation, order jail, require that you perform community service and counseling.

Additionally, the state of Michigan, through the Treasury department will require you to pay $1000.00 for a period of two years towards the Drivers Responsibility Fee. Failure to pay the fee will result in suspension of your driving privileges. You should also be aware that the 6 points will remain on your Michigan Driving record for a period of two years. As you can see Michigan Drunk Driving Laws are not friendly to those convicted of such a crime.

Also, Michigan Drunk Driving law provides that the conviction will remain on your record forever. The public is under the impression that after 10 years the offense drops off your record, this is not true. If that were the case then someone with two prior convictions during the 80′s who then picks up another in the year 2011 would be treated as if it was his first offense. Actually, under Heidi’s Law, he would be charged with a Felony. Three convictions under the Michigan Drunk Driving statute is considered a Felony no matter the duration between convictions.

Michigan does have a lessor offense known as Operating While Visibly Impaired. The difference between this offense and OWI is as follows: Impaired Driving is 4 points not 6. You will receive a suspended license for a period of 90 days, yet restrictions will be issued whereby you will be allowed to drive to and during the course of employment. The state of Michigan will impose a $500.00 Responsibility Fee for a period of two years. The court may impose the same terms and conditions as with an OWI.

For those of you under the age of 21 if you are stopped while operating a motor vehicle and you blow as low as .01 you will be charged with Zero Tolerance, Under 21 with a BAC. More information regarding this law can be found here.

PLEASE DO NOT RELY upon any of the information contained in this article when trying or attempting to represent yourself. You should always consult with an attorney before relying upon any written advice, article, blog etc. Make sure to maintain your rights and then lawyer-up when you are faced with a Michigan Drunk Driving charge. Josh Jones is your Michigan Criminal & Marijuana lawyer. He handles cases in Genesee CountyMetro DetroitWashtenaw CountyLapeer County and Livingston County.

WHAT ARE THE MIRANDA RIGHTS?

In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that a person taken into custody must be read his or her rights before being questioned, i.e. Miranda Rights. Those Miranda Rights are enforceable through the Fifth Amendment right not to make any self-incriminating statements against himself or herself. As a result of Miranda, an individual in police custody must be told that he or she has the right:

1. To remain silent.

2. Anything you say can and will be used against you in a court of law.

3. You have the right to an attorney.

4. If you cannot afford an attorney, one will be appointed for you.

Read the historic U.S. Supreme Court decision here Miranda v Arizona.

What if police fail to advise me of my Miranda Rights?

When questioned, a suspect in custody without first being read his or her Miranda Rights then any statement or confession made maybe presumed involuntary and cannot subsequently be used against the suspect during his or her criminal case involving the matter. Any evidence discovered as a result of that statement or confession maybe suppressed unable to be presented during trial.

Suppose that “John” is walking down the street and Officer X was walking on the other side of the street at the same time. Because Officer X is an outstanding police officer and looks over every single warrant notice that the department issues, he recognizes “John” from a warrant he saw last week (which included the booking picture of “John”). Officer X walks over to “John” and asks him his name. “John” replies and Officer X calls the station to determine if this is in fact the “John” that has a warrant issued for his arrest. This is the correct “John,” and the warrant was issued for failure to appear at a hearing for a current criminal case pending involving “John.” Officer X subsequently arrests him and takes him back to the police station. He is never read his Miranda rights, shortly after “John” is booked at the station, Officer X puts “John” in the room where he is questioned for 30 minutes. Officer X still never read him his Miranda rights. During the interrogation, which was custodial, “John” made numerous incriminating statements about his criminal case that was still pending at the court.

The incriminating statements made by “John” would likely be suppressed when it came to trial, which means that the prosecutor working on the case would not be able to use the statements as evidence against John when prosecuting him for the crime. However, this would not preclude prosecution altogether, at least with regards to the facts as noted. Of course, the statements are only likely to be suppressed, and this is said because many situations, especially when dealing with the law, are not always black and white.

Circumstances can influence and/or change the outcome of any case, for better or worse. This article was supposed to point out that these things, such as Miranda rights, are key to defending any individual’s Constitutional and Moral rights. It is a defense lawyer’s job to notice these things, pull them out of the case, and determine if it will stick. If it does then we take a shot at it, if we advise.

Please do not rely on these principles if attempting or trying to defend yourself during a criminal proceeding, but instead speak with or retain an attorney. Whenever you are facing criminal charges, you need a criminal defense attorney. Josh Jones has your back and is available 7-days a week.

MICHIGAN ADVICE OF RIGHTS – MISDEMEANORS

Here in the State of Michigan, any individual who is charged with a Misdemeanor will have his or her case heard before a District Court Judge. This process begins with an Arraignment before a Magistrate, and during the arraignment every individual is required to read and review a Michigan Advice of Rights form.

In many instances, the court will have the Defendant sign, date, and indicate his or her basic information at the bottom of the Michigan Advice of Rights form. In some instances, the Magistrate will simply review the rights listed on the form and make sure that the Defendant understands them, but this rarely occurs. Courts have the Defendant sign and review the Michigan Advice of Rights form in order to limit his or her ability to appeal for a lack of understanding his or her rights.

The following is the basic language of the Michigan Advice of Rights form; however, some of the language may change from court to court, but will maintain the same legal and constitutional effect:

1) If you require special accommodations to use the court because of disabilities or if you require a foreign language interpreter to help you fully participate in court proceedings, please contact the court immediately to make arrangements.

2) You have been brought to court on a misdemeanor charge. You have the following basic rights:

a) To plead guilty or not guilty or to stand mute. If you stand mute, a plea of not guilty will be entered. You may plead no contest 
with the permission of the court.

b) To have a trial by jury.

c) To have the assistance of an attorney.

3) You have the right to an attorney appointed at public expense if you are indigent (without money to hire an attorney) and if a. the offense charged requires a minimum jail sentence, or
b. the court determines that it might sentence you to jail.

4) You may have to repay the expense of a court-appointed attorney.

5) If you have a trial, you have the following rights:

a) To call witnesses to speak for you at trial. You may get an order signed by the court to require witnesses to come to court.

b) To see, hear, and question all witnesses against you at trial.

c) To be a witness for yourself or to remain silent. If you choose not to be a witness on your own behalf, the prosecuting official 
may not comment on your refusal to testify.

d) To be presumed innocent until proven guilty beyond a reasonable doubt.

6) If you plead guilty or no contest and your plea is accepted, you will not have a trial of any kind and will give up the rights listed in items 3 and 5 above.

7) You have the right to be released on bond.

8) If you are now on probation or parole and you enter a plea of guilty (or no contest) or a finding of guilt is made by judge or jury, it may result in a violation of your probation or parole.

9) You can be sentenced up to 93 days in jail or fined up to $500 plus costs, or both unless otherwise advised by the court. (The court will advise you if there is a minimum jail sentence.)

a) Fines, costs, and other financial obligations imposed by the court must be paid at the time of assessment pursuant to MCR 1.110.

b) An appeal to circuit court may be taken within 21 days from date of sentence or as permitted pursuant to MCR 6.625(B). If the sentence includes incarceration and if you wish to file an appeal but are financially unable to retain a lawyer, the court will appoint a lawyer to represent you on appeal, if the request for a lawyer is made within 14 days after sentencing.

c) Federal law and/or state law may prohibit you from possessing or purchasing ammunition or a firearm (including a rifle, pistol, or revolver) if you are convicted of a misdemeanor crime of violence and you are a current or former spouse, parent, or guardian of the victim; you share a child in common with the victim; you are or were cohabitating with the victim as a spouse, parent, or guardian; or you are or were involved with the victim in another, similar relationship.

The Michigan Advice of Rights form will always be signed before the taking of any misdemeanor plea, and sometimes it is signed on the date of arraignment, which is the first hearing scheduled in any criminal matter. The Michigan Advice of Rights form may not be provided, but it will be read on the read and the defendant will have acknowledged such language and rights. Further, even when the Michigan Advice of Rights form is signed and provided to the court, the language of the Michigan Advice of Rights form will again likely be restated by the court and reacknowledged by the defendant.

PLEASE DO NOT RELY upon any of the information contained in this article when trying to represent yourself. You should always consult with an attorney before relying upon any written advice, article, blog etc. Josh Jones maintains a full-service criminal defense firm, specializing in marijuana law, and handling expungements, probation violations, driver’s license restorations, traffic tickets or infractions, drunk driving, and all criminal felonies and misdemeanors.

What Is An Enclosed Locked Facility?

The Michigan Medical Marihuana Act (aka MMMA) specifically defines “enclosed locked facility.” An “enclosed locked facility” is defined as “a closet, room or other comparable, stationary, and fully-enclosed area equipped with secured locks or other functioning security devices that permit access only by a” patient or caregiver.

It also explains that individuals cultivating outside can satisfy the “enclosed locked facility” requirement if an individual builds a structure that is:

  • anchored, attached, or affixed to the ground;
  • located on land that is owned, leased or rented by patient or caregiver;
  • equipped with functioning locks or other security device; and
  • enclosed on all sides, except for the ground, by chain-link fence, wire mesh, wooden slats, or similar material preventing access by the public.

An enclosed locked facility will also be established for moments where an individual is transporting a plant from one location to another within his or her vehicle. However, it should be noted that the intent of the individual must be to transport the plant from one location to another permanent location in order for the vehicle to be considered an enclosed locked facility. If the individual is transporting the marijuana plants to a temporary location, the vehicle will not be considered an enclosed locked facility, and thus the individual will be in violation of Section 4 of the MMMA.

It is always important to know the law, especially when they can bring about criminal charges. In order to smoke carefree there are certain things you as a patient or caregiver must know and follow as indicated within the MMMA, such as cultivating within an enclosed locked facility. If you have questions, comments, or concerns contact Josh Jones today; he is your Michigan Marijuana Lawyer.

PLEASE DO NOT RELY ON THESE LEGAL OPINIONS AND OBSERVATIONS WHEN OR IF REPRESENTING YOURSELF IN COURT. THESE ARTICLES ARE NOT MEANT TO COMPENSATE OR EFFECUATE LEGAL REPRESENTATION OF ANY KIND. YOU SHOULD AND MUST ALWAYS CONTACT AN ATTORNEY AND DISCUSS WITH HIM OR HER THE CONSEQUENCES OF ANY AND ALL IDEAS, STATEMENTS, OPINIONS, EXPRESSIONS, BELIEFS, THROUGHTS, OR OTHERWISE STATED ON THIS SITE.