Criminal Law Attorneys

Effective Legal Representation for Your Criminal Defense

Experienced Criminal Law Attorneys Brighton MI - Gerkin & Decker, P.C. - iStock_000048329818_SmallGerkin & Decker knows what it takes to effectively represent you when you are faced with jail time or even prison. If you are facing the possibility of criminal charges or have been charged, be prepared, know your rights, and call Gerkin & Decker, P.C.

The attorneys at Gerkin & Decker, P.C. have successfully negotiated settlements for people accused of criminal activity. In Livingston county, our most commonly advised cases include drunk driving (OWI), misdemeanors, felonies, implied consent, license suspension restoration.

Client Intake Sheet for Criminal Matter


OWI - (Drunk Driving) Attorney in Brighton, MI 

Drunk Driving and Operating Under the Influence (DUI, OWI, OWVI)

Under Michigan law it is illegal to drive while intoxicated, or impaired by alcohol, illegal drugs and some prescription medications.  Most drunk and drugged driving offenses are misdemeanors; however, under Michigan law, a third or subsequent drunk or drugged driving offense and all drunk or drugged driving offenses causing serious injury or death to another person are felonies. There are four general types of substance abuse related driving offenses in Michigan:

  1. Operating While Intoxicated (OWI) – means that because of alcohol or other drugs your ability to safely operate a motor vehicle was substantially affected.  The legal limit in the state of Michigan is 0.08. This means that if your bodily alcohol content (BAC) is at or above 0.08, it is presumed that you cannot safely operate a vehicle.  Further, if the alcohol level in your body was at or above 0.17 you can be charged with high BAC or “super drunk” and be subject to significantly harsher penalties.
  2. Operating While Visibly Impaired (OWVI) – means that because of alcohol or other drugs your ability to operate a motor vehicle was visibly impaired. You can be charged with this offense regardless of your bodily alcohol content (BAC).
  3. Operating With Any Presence of a Schedule 1 Drug or Cocaine (OWPD) – means operating a motor vehicle while having any trace of these drugs in your body, even if you do not appear to be intoxicated or impaired.
  4. Under Age 21 Operating With Any Bodily Alcohol Content (Zero Tolerance) – means operating a motor vehicle while having a bodily alcohol content (BAC) of 0.02 to 0.07, or any presence of alcohol in your body other than alcohol that is consumed at a generally recognized religious ceremony.

Michigan’s anti-drunk and drugged driving laws are very specific and carry severe penalties.  Beyond the possible jail/prison sentence, probation, other penalties and costs levied by the judge in the criminal case, the Secretary of State has standardized penalties for substance abuse related driving convictions. Michigan law requires the following penalties for substance abuse related driving convictions:


First Offense:

Operating While Intoxicated (OWI) or Operating With Any Presence of a Schedule 1 Drug or Cocaine (OWPD)

$100 to $500 fine and one or more of the following:

  • Up to 93 days in jail
  • Up to 360 hours of community service
  • Driver's license suspension for 30 days, followed by license restrictions for 150 days
  • Possible vehicle immobilization
  • Possible ignition interlock
  • Six points added to driving record
  • Driver Responsibility Fee:
  • $1,000 for 2 consecutive years for OWI
  • $500 for 2 consecutive years for OWPD

High Blood Alcohol Content (BAC of .17 or higher). This is one of the operating while intoxicated crimes, but it has harsher consequences.

One or more of the following:

  • Up to 180 days in jail
  • $200 to $700 fine
  • Up to 360 hours of community service
  • Driver's license suspension for 1 year. Eligible for restrictions after 45 days of suspension if an ignition interlock device is installed on all vehicles the offender owns or intends to operate
  • Possible metal license plate confiscation if the offender operates a vehicle without a properly installed ignition interlock device
  • Mandatory vehicle immobilization if the offense is subsequently convicted for operating a vehicle without a properly installed ignition interlock device.
  • 6 points added to the offender's driving record
  • Driver Responsibility Fee of $1000 for 2 consecutive years

Operating While Visibly Impaired

  • Up to a $300 fine, and one or more of the following:
  • Up to 93 days in jail
  • Up to 360 hours of community service
  • Driver's license restrictions for 90 days (180 days if impaired by a controlled substance)
  • Possible vehicle immobilization
  • 4 points added to the offender's driving record
  • Driver Responsibility Fee of $500 for 2 consecutive years

Second Offense within 7 Years (any combination)

Operating While Intoxicated

$200 to $1000 fine, and one or more of the following:

  • 5 days to 1 year in jail
  • 30 to 90 days of community service
  • Driver's license revocation and denial for a minimum of 1 year (minimum of 5 years if there was a prior revocation within 7 years)
  • License plate confiscation
  • Vehicle immobilization for 90 to 180 days, unless the vehicle is forfeited
  • Possible vehicle forfeiture
  • 6 points added to the offender's driving record
  • Driver Responsibility Fee of $1,000 for 2 consecutive years

Operating While Visibly Impaired

  • $200 to $1,000 fine, and one or more of the following:
  • 5 days to 1 year in jail
  • 30 to 90 days of community service
  • Driver's license revocation and denial for a minimum of 1 year (minimum of 5 years if there was a prior revocation within 7 years)
  • License plate confiscation
  • Vehicle immobilization for 90 to 180 days unless the vehicle is forfeited
  • Possible vehicle forfeiture
  • 4 points added to the offender's driving record
  • Driver Responsibility Fee of $500 for 2 consecutive years

Third Offense Within Lifetime (any combination) is a Felony

Operating While Intoxicated

$500 to $5,000 fine, and either of the following:

  • 1 to 5 years imprisonment
  • Probation, with 30 days to 1 year in jail
  • 60 to 180 days community service
  • Driver's license revocation and denial if there are 2 convictions within 7 years or 3 convictions within 10 years. The minimum period of revocation and denial is 1 year (minimum of 5 years if there was a prior revocation within 7 years)
  • License plate confiscation
  • Vehicle immobilization for 1 to 3 years, unless the vehicle is forfeited
  • Possible vehicle forfeiture
  • Vehicle registration denial
  • 6 points added to the offender's driving record
  • Driver Responsibility Fee of $1,000 for 2 consecutive years

Operating While Visibly Impaired

$500 to $5,000 fine, and either of the following:

  • 1 to 5 years imprisonment
  • Probation, with 30 days to 1 year in jail
  • 60 to 180 days community service
  • Driver's license revocation and denial if there are 2 convictions within 7 years or 3 convictions within 10 years. The minimum period of revocation and denial is 1 year (minimum of 5 years if there was a prior revocation within 7 years)
  • License plate confiscation
  • Vehicle immobilization for 1 to 3 years, unless the vehicle is forfeited
  • Possible vehicle forfeiture
  • Vehicle registration denial
  • 4 points added to the offender's driving record
  • Driver Responsibility Fee of $500 for 2 consecutive years

Zero Tolerance (under age 21)

First Offense

  • Up to a $250 fine, or up to 360 hours of community service, or both
  • Driver's license is restricted for 30 days
  • 4 points are added to the offender's driving record
  • Driver Responsibility Fee of $500 for 2 consecutive years

Second Offense with 7 years

One or more of the following:

  • Up to a $500 fine
  • Up to 60 days of community service
  • Up to 93 days in jail
  • Driver's license suspension for 90 days. If there is a prior drunk or drugged driving conviction, there is a driver license revocation and denial for a minimum of 1 year (minimum of 5 years if there was a prior revocation within 7 years)
  • 4 points are added to the offender's driving record
  • Driver Responsibility Fee of $500 for 2 consecutive years

Michigan's Implied Consent Law

Preliminary Breath Test and Michigan’s Implied Consent Law

Preliminary Breath Test (PBT): If you are stopped by a police officer and the officer believes that you are intoxicated or under the influence of alcohol, the officer may request that you submit to a Preliminary Breath Test (PBT) to determine if you have consumed alcohol. A PBT is a handheld device which is used to determine whether alcohol is present in a breath sample. If you refuse to take the PBT, you may be charged with a civil infraction, which carries a fine up to $150.00, plus court costs. Unless you are under the age of 21 (in which case 2 points will be added to you driving record), there are no other criminal charges or driver’s license sanctions associated with the refusal to take a PBT.

Implied Consent: Regardless of if you submit to a PBT or not, you can still be arrested for Operating While Intoxicated or While Visible Impaired.  If you are arrested, you will be asked to submit to a chemical test under Michigan’s Implied Consent Law.  The chemical test is generally in the form of a blood draw or a breath test on a BAC Datamaster. The BAC Datamaster is much larger than the portable handheld device used by officers when administering a preliminary breath test and is generally considered to be a more accurate machine for detecting the presence of alcohol in a breath sample. Blood draws are usually conducted at a hospital and the BAC Datamaster test is normally administered at the police station. Under Michigan's Implied Consent law, all drivers are considered to have given their consent to a chemical test. If you refuse to submit to a chemical test you may face consequences separate from those that result from an underlying OWI, OWVI or OWPD conviction. If the officer issues a citation for refusing to submit to a chemical test you may request an administrative hearing regarding your alleged refusal.  At the hearing, the officer would have to prove certain facts before the statutory consequences would apply.

If you do not request the hearing, or if the officer proves his or her case at the hearing, the following will happen:

  • Six points will be added to your driving record
  • Your license will be suspended for 1 year if it is the first time you refused to take the test under the Implied Consent law
  • Your license will be suspended for 2 years if you refused to take the test one or more times within the preceding 7 years

If you have been cited for refusing to submit to a chemical test under Michigan’s Implied Consent Law, time is of the essence.  The officer will destroy your driver license, will issue you a paper permit, and will provide you with written notice of your rights (you should have been verbally advised of your chemical test rights prior to the request that you submit to a test) and instructions on how to request a hearing. You have 14 days to request an administrative hearing to challenge the alleged refusal.

Gerkin & Decker, P.C. can assist you in defending an alleged violation under Michigan’s Implied Consent Law and assist you in preparing for the hearing, presenting your side of the story, and keeping your license. If you are unsuccessful at the administrative hearing we can also assist in filing a motion for reconsideration or an appeal to the circuit court where the court may restore your license or give you a restricted license.


Michigan Driver's License Suspension / Restoration

Driver’s License Restoration

If your driver’s license has been suspended or revoked, you know the hardship of not being able to legally drive. Gerkin & Decker, P.C. has helped many people get their lives back by restoring their driving privileges through the Michigan Driver Assessment & Appeal Division (DAAD) and appeals to the circuit court having jurisdiction over the matter.

Many Michigan drivers often forget that driving is a privilege. There are a multitude of reasons why you may be facing a license restriction, a license suspension or a license revocation through the Secretary of State and court system.

Common reasons include:

  • Multiple drunk driving offenses
  • A refusal to submit to a chemical test
  • Too many points
  • Restricted license violations
  • Disability
  • Drug related convictions
  • Driving on a suspended/revoked license
  • Out-of-state convictions

Restricted License:

A restricted license means that you have limited driving privileges.  Those privileges will be clearly defined and will restrict your ability to drive.  The restrictions may allow you to drive during certain hours, to and from work, to and from court ordered activities and for medical emergencies.

Suspension:

A license suspension is usually for a set duration and will have a “start” and “end” date.  At the “end” date the driver normally only needs to appear at the Secretary of State and pay a reinstatement fee.  However, some suspensions are indefinite and the suspension will not terminate until approved by the Secretary of State or the court.

Revocation:

A license revocation is the most serious licensing sanction and is also known as a termination of the driver’s license and the privilege to operate a vehicle. Michigan law sets the minimum period of revocation depending on the underlying offense.  Following the minimum period of revocation the driver will be eligible to reapply for a license, however, there is no guarantee that the license will be returned simply because the minimum revocation period has expired.

Drivers whose licenses have been restricted, suspended or revoked are entitled to an administrative hearing and /or possibly a hearing at the circuit court having jurisdiction over the matter.  There are strict time limits and strict criteria that must be met when requesting a hearing and the process varies greatly depending on the underlying reason for the licensing action.  Some drivers are eligible for hardship appeals where it must be demonstrated that the licensing action poses an undue hardship on the driver and that a license, in some form, is necessary for day-to-day living. Other drivers are not eligible for a hardship appeal and must petition for a reinstatement of their license.

If your driver’s license has been restricted, suspended or revoked Gerkin & Decker, P.C. can assist you with the following:

  • Analyzing your situation to determine what relief is available and, if relief is available, the proper course of action and venue to request the restoration of your license
  • Preparation in commencing your case
  • Securing evidence, including proof of your ability to safely operate a motor vehicle, community letters in support of your case and, if necessary,  proof of sobriety and/or proof of your mental and physical health
  • Putting you in touch with other local professionals who can provide necessary services  including substance abuse counseling, substance abuse assessments and support groups
  • Preparing for your hearing by reviewing proposed testimony and identifying potential “red-flag” issues
  • Attending the hearing and submitting evidence to the hearing officer or court
  • If necessary and if appropriate, appealing the case to the proper authority

Strategic Legal Representation for Misdemeanors

Under Michigan law, a misdemeanor is any criminal offense which carries a potential term of incarceration of up to one year.  Most Michigan misdemeanors come in two forms: misdemeanors punishable by up to 93 days in jail and misdemeanors punishable by up to one year in jail.  All misdemeanor charges are handled in the District Court in the county where the crime is alleged to have occurred.

At Gerkin & Decker, P.C. we have experience handling all different types of misdemeanors including alcohol and drug related driving offenses including, DUI, OWI, and OWVI; minor in possession (MIP); drug crimes; assault crimes; driving while license suspended (DWLS); probation violations; malicious destruction of property; larceny; and domestic violence crimes. If you have been arrested for a misdemeanor offense contact Gerkin & Decker, P.C. today for a free consultation.


General Misdemeanor Process:

Although additional hearings are sometimes necessary, if you are charged with a misdemeanor you can typically expect to go through the following process:

Arraignment:

This is the first step in the criminal process and will generally be your first court appearance.  You will be required to attend a short hearing either in person or by video (if you are in jail) so the court can formally read the charges against you, enter a formal plea and address bond conditions.  You will almost always enter a not guilty plea or stand mute (very rarely will a defendant enter a guilty plea at this stage; in fact, many courts will not even accept guilty pleas at this stage in the process). In some circumstances, if you have retained counsel, an arraignment may be waived and the hearing is unnecessary.

Pretrial:

At this point defense counsel will have had the opportunity to analyze the strengths and weaknesses of the prosecutor’s evidence. This hearing allows the defense attorney to meet with the prosecutor and discuss your case and the possibility of any plea deals.  In the event a plea deal is offered, you will discuss the agreement with defense counsel and determine the best course of action.  If a plea deal is presented that is acceptable, you would enter a guilty plea at the hearing and proceed with the sentencing process.  If a plea is not reached, the case will be set for a final settlement conference and a trial date will be scheduled.

Final Settlement Conference:

This is generally the final hearing prior to trial.  Defense counsel and the prosecutor will meet once again to discuss the case and attempt to resolve the matter prior to trial. Final settlement conferences are typically scheduled shortly before the day set for trial and if an acceptable plea deal is not reached, you will proceed to trial.

Trial:

Prior to trial the attorneys will meet to discuss any trial and evidence issues and a jury will be selected. At trial the prosecutor has the burden of proving, beyond a reasonable doubt, that you committed the crime that you are charged with.  When attempting to meet their burden, the prosecutor will use testimony and other evidence to establish that all of the elements of the particular crime were met and that you in fact committed the crime.  Prior to trial, your defense attorney will discuss trial options with you and formulate a plan for your defense.

Sentencing:

If you enter a guilty plea, or if you are found to be guilty at trial, you will be sentenced.  Depending on the crime, you will often be referred to the probation department for a presentence interview.  The probation department will then issue a report and sentencing recommendation to the judge and a copy will be provided to defense counsel to review with you prior to your sentencing hearing.  It is important to remember that although judges often put great weight on the probation departments report and recommendation, it is just a recommendation and the judge will ultimately determine your sentence.  At the sentencing hearing, you are entitled to allocate (or make a statement) to the court as to why your punishment should be limited. Defense counsel will also allocate on your behalf and will inform the court of all of the positive things about you and argue for a fair and just sentence.  Ultimately, the judge will determine if jail, probation, costs and fines or other alternate or available sentence structures are appropriate.

Experienced Defense Attorney for Felonies

Under Michigan law, a felony is any criminal offense which carries a potential term of incarceration of more than one year. Felonies in Michigan are classified by the seriousness of the offense. Crime class categories range from a "Class A" felony, such as murder which is punishable by imprisonment for life, to a "Class H" felony, such as stealing which may be punishable by jail or other "intermediate sanctions."

Regardless of the class of felony you are charged with, ALL felony charges are serious. At Gerkin & Decker, we have experience handling all types of felonies that range from life in prison to minimal jail time.  It is imperative you get an attorney that is skilled and experienced with handling these types of crimes. 

General Felony Process:

Although additional hearings are sometimes necessary, if you are charged with a felony you can typically expect to go through the following process:

Arraignment (District Court): This is the first step in the criminal process and will generally be your first court appearance.  You will be required to attend a short district court hearing either in person or by video (if you are in jail) so the court can formally read the charges against you, enter a formal plea and address bond conditions.  You will almost always enter a not guilty plea or stand mute (very rarely will a defendant enter a guilty plea at this stage; in fact, many courts will not even accept guilty pleas at this stage in the process). In some circumstances, if you have retained counsel, an arraignment may be waived and the hearing unnecessary.  The court will then schedule a preliminary examination within 14 days of the arraignment.

District Court Pretrial/Preliminary Exam Conference: This hearing is often referred to differently by different courts and in some instances is not even conducted.  The hearing is conducted at the district court having jurisdiction over the case and allows the defense attorney to meet with the prosecutor and discuss your case.  Sometimes plea deals are discussed and entered at this stage.  However, a more likely scenario is that the prosecutor and defense attorney will discuss the evidence in the case and, with the assistance of counsel; you will determine if a preliminary examination will be conducted or waived.  If a plea deal is presented that is acceptable, you would enter a guilty plea at the hearing and proceed with the sentencing process.  If you waive your right to a preliminary examination you will be bound over to the circuit court having jurisdiction in the case and the criminal process will continue.  If, after examining the case, it is determined that a preliminary examination should be conducted, the hearing will be held within 14 days of arraignment.

Preliminary Examination: This hearing is often referred to as a probable cause hearing. It is the first adversarial hearing in the process and is conducted by the district court judge having jurisdiction over the case. At the hearing the prosecutor must provide enough evidence to show that a crime was committed and that there is probable cause to believe you committed the crime. Defense counsel will be given the opportunity examine witnesses and submit evidence on your behalf. If the judge finds that a crime was committed and that there is probable cause to believe that you committed the crime, you will be bound over to the circuit court having jurisdiction in the case and the criminal process will continue.  If the judge finds that the prosecutor has not met his or her burden the case can be dismissed.

Arraignment (Circuit Court): This hearing is called the Arraignment on the Information and can often be waived under the right circumstances.  After being bound over to the circuit court, the hearing will be conducted and the specific charges against you will be read and explained.  This hearing is very similar to the original district court arraignment and most defendants continue their not guilty plea or stand mute.

Pretrial: At this point defense counsel will have had the opportunity to analyze the strengths and weaknesses of the prosecutor’s evidence. This hearing allows the defense attorney to meet with the prosecutor and discuss your case and the possibility of any plea deals.  In the event a plea deal is offered, you will discuss the agreement with defense counsel and determine the best course of action.  If a plea deal is presented that is acceptable, you would enter a guilty plea at the hearing and proceed with the sentencing process.  If a plea is not reached, the case will be set for a final settlement conference and a trial date will be scheduled.

Final Settlement Conference: This is generally the final hearing prior to trial.  Defense counsel and the prosecutor will meet once again to discuss the case and attempt to resolve the matter prior to trial. Final settlement conferences are typically scheduled shortly before the day set for trial and if an acceptable plea deal is not reached, you will proceed to trial.

Trial: Prior to trial the attorneys will meet to discuss any trial and evidence issues and a jury will be selected. At trial the prosecutor has the burden of proving, beyond a reasonable doubt, that you committed the crime that you are charged with.  When attempting to meet their burden, the prosecutor will use testimony and other evidence to establish that all of the elements of the particular crime were met and that you in fact committed the crime.  Prior to trial, your defense attorney will discuss trial options with you and formulate a plan for your defense.

Sentencing:  If you enter a guilty plea, or if you are found to be guilty at trial, you will be sentenced.  Depending on the crime, you will often be referred to the probation department for a presentence interview.  The probation department will then issue a report and sentencing recommendation to the judge and a copy will be provided to defense counsel to review with you prior to your sentencing hearing.  It is important to remember that although judges often put great weight on the probation departments report and recommendation, it is just a recommendation and the judge will ultimately determine your sentence.  At the sentencing hearing, you are entitled to allocate (or make a statement) to the court as to why your punishment should be limited. Defense counsel will also allocate on your behalf and will inform the court of all of the positive things about you and argue for a fair and just sentence.  Ultimately, the judge will determine if jail, probation, costs and fines or other alternate or available sentence structures are appropriate.


If you or a loved one has been accused of a crime, arrested for drunk driving, or charged with a misdemeanor or felony in Brighton, Chelsea, Howell, Fowlerville, Fenton and the surrounding areas; know your rights and protect your future with responsible representation. Call Gerkin & Decker, P.C. at (810) 222-6424 and speak to an attorney. 

 

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