Michigan Criminal Lawyers Blog

September 4, 2014

Technicality Results in Texas Man’s DWI Conviction Being Overturned by Appeals Court

In the state of Texas, an individual may be sentenced to life in prison for a third felony DWI conviction. Recently, a 44-year-old Texas man may have received a new lease on life, when an appeals court overturned a DWI conviction from an incident that occurred in 2012.

According to the Tyler Morning Telegraph, 44-year-old Samuel Gentry of Whitehouse was sentenced to life in prison in 2013 for the 2012 incident. Gentry was stopped by a Tyler police officer in 2012 who determined that Gentry was intoxicated. The officer tried to get Gentry to submit to a breathalyzer test, however he refused. The officer then obtained a medical blood draw from Gentry, but did not have a warrant when he did so. This, according to the article, has become fairly common with offenders in Texas who have been convicted of DWI at least twice in the past.

During Gentry’s pretrial, his attorney attempted to have the blood draw evidence thrown out, however the judge denied the motion. Gentry then decided he would plead guilty rather than going to trial. During this time, a case known as Missouri v. McNeeley was being decided in the U.S. Supreme Court. In this case, the defendant, like Gentry, had been subjected to a warrantless blood draw. While prosecutors argued that these warrantless procedures were essential because of how quickly alcohol can evacuate from the blood stream, the Supreme Court disagreed and found that warrantless blood draws violate a defendant’s right against unreasonable search and seizure.

Because of the Supreme Court’s ruling in this case, the Twelfth Court of Appeals reversed Gentry’s conviction and remanded his case back to court, finding that “the implied consent and mandatory blood draw statutory schemes found in the transportation code are not exceptions to the warrant requirement under the Fourth Amendment.”

While Michigan’s criminal penalties for a felony third DUI conviction are in no way similar to those in Texas, they are still very serious. A third OWI, or Operating While Intoxicated conviction in Michigan will result in between one to five years in prison, fines of up to $5,000, up to 180 days of community service, mandatory vehicle immobilization, and more.

Individuals who have been convicted of driving under the influence of alcohol or drugs may wish to appeal their conviction, particularly if as in the case above, their rights were violated in some manner. We all have constitutional rights, and when those rights are violated by police, it may be grounds to appeal.

September 3, 2014

Atlanta Police Supervisor Refuses Field Sobriety Test, Jailed on Suspicion of DUI

by Scott Grabel

Late last month, Robert Joseph Albertini was stopped by a Cobb County officer who spotted the Atlanta Police supervisor weaving back and forth over a double yellow line. The supervisor, Robert Joseph Albertini, refused to submit to a field sobriety test and was arrested on suspicion of drunk driving. He was taken to the Cobb County Jail.

According to a Fox Atlanta news article, the incident took place on a road in Kennesaw. Chief George Turner placed Albertini on suspension and said that before making a decision on the offer’s future, an administrative hearing will be conducted.

In the state of Michigan, field sobriety tests are voluntary, which means that the individual who is suspected of driving while under the influence has the option of taking the test, or refusing it. Most Michigan DUI lawyers would recommend that motorists refuse this test, which is highly subjective. The tests administered in a field sobriety test in Michigan include the one-leg stand, the walk and turn, and the penlight (horizontal nystagmus) test. Unfortunately, how well you perform on these tests is left up to the police officer, who may decide that you did not meet up to his or her expectations. This could result in a drunk driving charge.

It is difficult for many sober people to stand on one leg, let alone someone who may be on prescription medication or suffer from a medical condition that affects their stability. Ultimately, field sobriety tests rely not on scientific evidence, but the subjective opinion of the officer administering the test.

This story proves that anyone can be arrested for DUI, even police officers. The Atlanta police officer was weaving back and forth across double yellow lines, but does that mean he was intoxicated? While he may have been, it could also be a case of fatigue, or distraction if he was perhaps texting, talking on a cell phone, or doing one of the dozens of things people do while they are driving that they should not be doing.

September 2, 2014

Nantucket Man Indicted on Heroin Distribution Charge

by Scott Grabel

On August 15, 26-year-old Eric Santos of Nantucket was indicted on a charge of possession of heroin with intent to distribute after he allegedly flew to Hyannis from his home to purchase heroin, according to a news article at the Cape Cod Times.

A Barnstable County grand jury indicted Santos on the charge, which came after police departments in Nantucket and Barnstable worked together to catch him. A police report indicated that Barnstable police were notified by Nantucket police that the suspect would be flying to Hyannis to purchase heroin to bring back to Nantucket via an Island Airlines flight.

After arriving in Hyannis, Santos was unknowingly followed by Barnstable police as he went to a McDonald’s and was delivered to a Hyannis residence after being picked up by a taxi. Santos allegedly remained inside the residence only a short time before leaving in a taxi and being dropped off at the airport. This is when police approached the suspect with a drug-sniffing dog. Upon the dog detecting narcotics, police found a digital scale and 12 grams of heroin in Santos’ backpack, estimated to have a street value of $6,000.

In Massachusetts, the criminal penalties for a first-time offender convicted of possession of heroin with intent to distribute include a maximum of 10 years in state prison, or 2 1/2 years in the House of Correction, along with fines of up to $10,000 and loss of driver’s license.

These are very serious penalties, however in Michigan the consequences an individual will face if found guilty of heroin possession with intent to deliver are even more serious. A first-time offender convicted of this drug offense when less than 50 grams of heroin is involved will face a maximum prison term of 20 years, along with fines of as much as $25,000.

It is important to know that when a person possesses an illegal drug such as heroin, cocaine, methamphetamine, or even marijuana, the amount in that person’s possession may dictate whether prosecutors attempt to charge the individual with possession, or possession with intent to distribute or deliver. When the amount of a drug a person possesses is more than police and prosecutors feel someone would possess for his or her own personal use, they may attempt to up the charges to include distribution. This will result in harsher penalties if the defendant is found guilty.

September 1, 2014

DUI Campaigns Over Labor Day Weekend Tough on Drunk Drivers

by Scott Grabel

Holiday weekends are when law enforcement pull out all the stops, so to speak, in their efforts to crack down on drunk or impaired driving. This past holiday weekend was no different, with a few cities and states participating over the Labor Day weekend in “no refusal” checkpoints. These checkpoints were set up in Houston, TX, and throughout Tennessee according to news reports.

Houston’s KHOU.com indicated that the no refusal program began at 10 p.m. on Friday, and ran until Labor Day morning. A family who lost four of their loved ones to a drunk driver earlier this summer joined in the drunk driving campaign. The Patels were returning from West Houston where they had been to their Hindu temple when their vehicle was broadsided by a driver who was allegedly drunk. Depali Patel, who was in the crash, lost four loved ones including both her parents. She said that life would never be the same.

The no refusal checkpoints have judges, prosecutors, and health care workers all in one location so that blood can be drawn from DUI suspects while police get back to the work of checking for those who may be driving while under the influence of drugs or alcohol. According to news articles, the Labor Day 2013 weekend brought about double the DUI arrests of a typical weekend. 205 people were arrested in Houston last Labor Day on suspicion of driving while under the influence.

Michigan DUI attorneys know the serious consequences individuals face when arrested for driving under the influence. On its own, a DUI conviction can bring about criminal penalties that include jail time, suspended driver’s license, steep fines, community service, and more. However, when someone is accused of DUI causing great bodily harm or death, it becomes far more serious.

August 29, 2014

Secretary of State Records Reveal Driver in Wrong-way Crash Had License Suspended Years Ago

by Scott Grabel

Earlier this month, a Grand Rapids woman, 36-year-old Crystal Louise Rincones, allegedly drove the wrong way on U.S. 131 resulting in a head-on collision that seriously injured the driver of the other vehicle, 49-year-old Vickers Charles Hansen. Now, Secretary of State records indicate that Rincones was not supposed to be driving, as her license had been suspended on many occasions over the past 16 years.

According to a news article at Mlive.com, Rincones’ driver’s license had been suspended for various reasons over the years, including numerous DUI convictions, and failure to pay parking tickets and reinstatement fees. The accident occurred on August 5 in the southbound lanes of U.S. 131 near 36th Street, according to police.

According to Rincones’ driving record, she had periodic license restrictions so that she could drive to treatment of what was described as a “serious medical condition,” although the nature of the medical condition was not disclosed.

Since 1998, Rincones has been arrested for operating while impaired and driving with an unlawful blood-alcohol content, cited for driving with no proof of insurance, unpaid parking tickets, driving while license suspended, a drug offense, speeding, and more. Just last year, she was involved in a one-car accident that resulted in the injury of three people; this was after Grand Rapids had put a hold on her license due to parking tickets that remained unpaid.

Following the August 5 crash, Rincones was said to be in critical condition; she was transported to Spectrum Health Butterworth Hospital.

Driving on a suspended or revoked license in the state of Michigan is very serious. It is understandable that there are emergency situations in which someone whose license has been suspended must drive, however it appears that Rincones has a reckless disregard when it comes to the law. Many people believe that driving is a “right,” when in fact it is not a right but a privilege.

Whether a drivers license is suspended or revoked due to operating while under the influence of alcohol or drugs, because of unpaid traffic tickets or unpaid child support, or due to a drug offense, it is never advisable to drive on a suspended license. You believe you won’t get caught, but it is not worth the risk. You cannot control other motorists, and could be involved in an accident that although not your fault, will reveal the fact that your driver’s license is suspended.

August 28, 2014

Detroit Man Arraigned on Charge of Murdering Wife, Pleads Not Guilty

by Scott Grabel

On May 24, 27-year-old Alicia Fox and her two children went missing. Fox’s body was eventually located by relatives in an abandoned home in Detroit, however the children, 6-year-old Kaylah Hunter, and 8-month-ol Kristian Justice, have yet to be found. Erin Justice, Alicia’s husband, was charged with murder and pleaded not guilty at his arraignment hearing on Wednesday, August 27, according to a news article at Mlive.com.

Erin Justice has not been charged with any crime related to the disappearance of the children, one of whom was his, but he did flee to Atlanta after his wife went missing. He fought extradition from Atlanta until recently, and is charged with first-degree murder in the death of his wife, who was found to have bullet wounds. Authorities believe Fox was killed in the home she and Justice shared before her body was moved to the basement in an abandoned home. Her decomposing body was found in early August. During the investigation into Fox’s disappearance, police found blood evidence in the couple’s home on Ardmore.

In addition to first-degree murder, Justice is charged with felony firearm and felon in possession of a firearm.

Michigan criminal defense attorneys know that fighting charges of murder is tough. If convicted of first-degree murder, Justice will likely face consequences that include spending the rest of his life behind bars. As with all crimes, a defendant is innocent until proven guilty beyond a reasonable doubt. Prosecutors in the case will have to provide strong and compelling evidence in order for Justice to be found guilty.

August 27, 2014

Hartford Man Faces Felony ‘Super-drunk’ Driving Charges After Crashing into Ditch

by Scott Grabel

On Sunday, August 24, 31-year-old Juan Benavidez of Hartford was arrested for driving while under the influence after he crashed his vehicle into a ditch, according to news reports at Mlive.com. The accident took place near CR 681 on 72nd Avenue at approximately 3:20 in the afternoon. An off-duty Hartford police officer called the accident in, and deputies were dispatched to the scene.

No other vehicles were involved in the crash, and Benavidez was the only person in his vehicle. A release issued by the Van Buren County Sheriff’s Office stated that Benavidez was traveling at a high rate of speed in a southbound direction when he attempted to turn east on 72nd Avenue and ended up in a ditch on the north side.

News reports indicate that Benavidez’s blood alcohol level upon being administered a breathalyzer test was more than three times the state’s legal limit of .08 percent. In Michigan, anyone with a blood alcohol content (BAC) of higher than .17 may be charged with “super drunk” driving. In addition, because it was the defendant’s third OWI offense, he may face felony charges as a third OWI in Michigan is a felony. The criminal penalties for a super drunk offense are harsh, and include driver’s license suspension for 45 days followed by 320 days of restricted driving, up to 180 days in jail, fines, and more.

Individuals who are convicted of a third DUI offense (a felony in Michigan) may face penalties that include up to five years in prison, driver’s license revocation, and possible vehicle immobilization, along with other penalties.

Benavidez was cited not only for DUI but for not having car insurance and driving on a suspended license.

A DUI conviction will have a serious negative impact on your life. Not only will you have a criminal record and possibly lose your freedom for a time if put in jail, your reputation and career may be tarnished. Having your driver’s license suspended or revoked is one of the most serious penalties, as it is nearly impossible to live a normal life when your privilege to drive is taken away.

August 26, 2014

Texarkana Former Pastor’s Life Sentence for Sex Crimes Upheld by Court of Appeals

by Scott Grabel

In October of last year, Hugo Fluellen, a former Gilmer, TX pastor was sentenced to six life terms for sex crimes that occurred over a period of about nine years, according to a CBS news report. Fluellen appealed his conviction, however it was upheld by the Sixth Court of Appeals in Texarkana on August 15 of this year.

News articles suggest that the victim had been sexually molested by Fluellen since she was in second grade, continuing until 2012. She is currently 18 years old. The former pastor allegedly sexually molested the girl after church, while on the way home from Sunday service. The girl attended the church where Fluellen pastored, and also sang in the choir.

Fluellen is 54 years old; his wife, 44-year-old Rosie Evans Fluellen, was also charged in the case, as she was allegedly a party to the crime according to other news sources. The victim had a child, which DNA evidence indicated was Fluellen’s. The victim did take the witness stand at trial, and described in detail what had been done to her by Fluellen in various locations including the church, in the church van, and in her own bedroom.

The defendant appealed his sentence, claiming that the trial court should not have accepted his pleas due to the fact that his plea was not entered voluntarily and knowingly, and that he was not properly admonished prior to the plea.

Michigan criminal appeals attorneys know what to look for when reviewing a case to determine whether there is solid grounds for appeal. While Fluellen claims that he was not properly admonished regarding his plea deal, there are many reasons a defendant may want to appeal either a conviction or sentence. You may be innocent of the crime, you may feel you have been unjustly sentenced, or there may have been errors made in the criminal justice process that could have affected the outcome, or the jury’s decision.

August 26, 2014

24-year-old Maryland Man Faces Multiple Drug Charges Following Search of Frederick Home

by Scott Grabel

On Wednesday, August 20, authorities searched the home of a Frederick, Maryland man they believed to be distributing illegal drugs. The home of 24-year-old Richard Thomas Rodgers Jr. was searched by Frederick County Special Services Team and the Frederick County Narcotics Task Force, according to an article at the Frederick News-Post.

Court papers revealed that Rodgers’ home was searched just before 5:30 p.m. on Wednesday, and that officers located various drug paraphernalia items along with a safe containing drugs in a bedroom. Officers had to pry the safe open, but once inside discovered three 30 mg. oxycodone pills and five bags of heroin estimated to be a total of 10 grams.

Rodgers is charged with a single count each of possession of heroin, possession of oxycodone, possession of drug paraphernalia, heroin distribution, and possession of heroin with intent to distribute.

Heroin possession and possession with intent to distribute are serious charges, regardless of where an alleged offender lives. The state of Michigan is particularly hard on drug offenders in terms of criminal penalties for those found guilty. For example, anyone who is convicted of heroin possession with intent to deliver heroin in an amount less than 50 grams will face a maximum of 20 years in prison, up to $25,000 in fines, or both. Even if it is determined that an individual was in possession of less than 50 grams of heroin but did not intend to sell or distribute the drug, he or she may still face up to four years in prison, and the same fine as mentioned above. The criminal penalties for oxycodone possession in an amount less than 50 grams are the same as those for heroin possession.

Anyone who is found to be in possession of heroin, cocaine, methamphetamine, marijuana, or any illegal drug should consult with a skilled Michigan drug crime attorney at once. Depending on the amount of the substance involved, police/prosecutors may attempt to turn a possession charge into a possession with intent to distribute charge, which means penalties that are much harsher if convicted.

August 25, 2014

Late Summer DUI Campaign Nets 187 Arrests in Six Days in One California County

by Scott Grabel

In a campaign to crack down on drunk driving that began on August 15, police agencies around Riverside County in California arrested 187 people for suspicion of DUI over a six-day time span, according to a news article at the Patch. This campaign, named the Riverside County Avoid the 30 due to the fact that 30 police agencies were involved, is a late-summer kick off of the campaign which will continue through the Labor Day weekend.

The news article states that beginning on Friday the 15th through Wednesday evening, sobriety checkpoints and saturation patrols were set up at a number of locations throughout the county. While the number of arrests seems high, Riverside police Sgt. Robert Tipre, coordinator of the Avoid campaign, said that the number was slightly down from the 234 individuals arrested during the same time period in 2013. Thankfully, out of the 187 arrested last week, there were no fatal car accidents related to alcohol.

September 1st is Labor Day, and between now and then there will be sobriety checkpoints throughout the country as various law enforcement agencies participate in the Driver Sober or Get Pulled Over national DUI campaign. The Avoid campaign in California is part of this campaign in which law enforcement agencies hope to increase awareness about the dangers of drunk driving, and catch those who are breaking the law.

Driving while under the influence of alcohol is a problem across the nation, including here in Michigan. Most people who get behind the wheel believe they are perfectly capable of driving in a safe manner. Most people do make it safely to their destination, however when an accident occurs that results in injury or even death, it is tragic.

Even when you are not involved in an accident, having the police pull you over on suspicion of driving under the influence is not pleasant – and if arrested and charged, you could face jail time, steep fines, suspension of your driver’s license, community service, and a permanent criminal record.