In The News: Priest-Penitent Case Headed for Appeal

 Reprinted From The Michigan Lawyer

A criminal case that could test 1,500 years of priest-penitent privilege could be headed toward the Michigan Court of Appeals.

Farmington Hills attorney Raymond Cassar said on May 25, 3rd Circuit Court Judge Cynthia Gray Hathaway made a good call when she said she wouldn’t mess with the age-old tradition, and law, that protects confidentiality between pastors and members of their flocks.

Cassar’s client, Samuel Bragg, now 18 years old, is accused of molesting a family member when he was 15 and the girl was 10 years old. In October 2009, the girl told the pastor at her church, where Bragg and his mother are also members, about the alleged molestation. Read Michigan Lawyers Weekly‘s story here. (Subscription required for full access.)

The pastor called Bragg and Bragg’s mother into his office to discuss what the girl had said. And according to Cassar, the pastor said that after lengthy questioning in the church office, Bragg confessed (though Bragg contends he never did). Later, the pastor, the Rev. John Vaprezsan, voluntarily gave police a one-page written statement to that effect.

At Bragg’s preliminary examination, 34th Wayne County District Court Judge Brian Oakley permitted Vaprezsan to testify, despite Cassar’s argument that MCL 600.2156 and MCL 767.5(a)2 clearly protects clergy-penitent communication as privileged and confidential.

Motions were due on May 18, and were argued Wednesday in front of Hathaway.

After Hathaway said she wouldn’t allow Vaprezsan to testify, Cassar said he was told by assistant prosecuting attorney Angela M. Povilaitis that it is her intent to to appeal at Michigan Court of Appeals. The Wayne County Prosecutor’s Office declined comment.

“Judge Hathaway said in court that it was obvious what my client was [in the pastor's office] to do. He was there to seek counsel from his pastor,” Cassar said. “And she wasn’t about to interfere with that privilege.”

Reprinted from an article about our firm that appeared on The Michigan Lawyer Blog as reported in The Michigan Lawyers Weekly.

Are Speed Limit Signs Merely a Suggestion?

If you receive a ticket for speeding, you might want to make sure that speeding ticket is actually enforceable under Michigan law!

Every driver knows that speed limits can go up and down like a roller coaster, on any given stretch of Michigan road. But few people understand who sets these speed limits, and under what law(s) speeding violations can be legally prosecuted.

 Public Act 85 of 2006 (PA 85) is the State statute that actually regulates where and how speed limits are set, and what penalties may be imposed for violating these speed limits. But local jurisdictions do not always follow this State law.

Recently, there have been a couple of articles in local news papers discussing this problem.  These articles are not new.  Last year there was a similar article discussing how many of the speed limits are kept artificially low to generate revenue.

This recent string of articles appears to have garnered the attention of State Rep. Rick Jones, R-Grand Ledge, who intends to introduce legislation forcing local jurisdictions to follow Public Act 85 of 2006 (PA 85), so that unfair speed limit laws are not put in place to “trap” otherwise careful drivers.

What does PA 85 actually state?  PA 85 addresses several different State statutes, but the Speed Limit debate has focused on the following language in Michigan Compiled Law 257.627 (PA 85), that mandates speed limits shall be:

(d) 25 miles per hour on a highway segment with 60 or more vehicular access points within 1/2 mile.

(e) 35 miles per hour on a highway segment with not less than 45 vehicular access points but no more than 59 vehicular access points within 1/2 mile.

(f) 45 miles per hour on a highway segment with not less than 30 vehicular access points but no more than 44 vehicular access points within 1/2 mile; and,

(3) It is prima facie unlawful for a person to exceed the speed limits prescribed in subsection (2), except as provided in section 629.

As a criminal defense attorney, I can see how these sections of PA 85 may be helpful for many drivers to avoid difficulties associated with speeding tickets. 

In other words, while this statute appears almost too complicated to be immediately useful, a skilled defense attorney may be able to use PA 85 to argue that the speed limit in question was not “legal” under Michigan law.

It may not be realistic for the average driver to be on the side of the road mapping out the best 1/2 mile for them to defend their speeding tickets.  But a skilled defense attorney can address the following issues: Should you calculate a half mile from the point of the ticket?  From the point the officer alleged you were speeding?  Or calculate a 1/4 mile before and after the point the officer alleged you were speeding? 

PowerPoint presentations addressing the legality of a certain speed limit might become a more integral part of informal or formal hearings regarding traffic offenses.  Perhaps video presentation where each curb cut, driveway, side street, or other “access point” is numbered would be useful.  The same video could have some indication of the mileage or measurements in question. 

In time, the situation will be corrected through introduction of new legislation, but in the meantime we’ll be watching to see how the courts react toward arguments about unenforceable speed limits.

If you have further questions about fighting a speeding ticket, contact the experienced lawyers at our firm and we will discuss what you may be able to do to fight that ticket.

(To view PA 85, visit: http://www.legislature.mi.gov/documents/2005-2006/publicact/htm/2006-PA-0085.htm). 

Attorney Daryl Wood is an experienced Michigan defense attorney, and a recognized legal expert on Driver’s License suspension and restoration issues. If you have received a ticket, have had a license suspended, or have been subject to Driver’s Responsibility fees in Michigan, Mr. Wood can help and advise you.

Contact Mr. Wood at: 313.278.8811 or 248.855.0911. Or visit his web site at http://www.crimlawattorney.net or http://www.drunkdrivingmichiganlawyer.com or  www.michiganmiplawyer.com.

That Drink Can Last A Lifetime!

 By Attorney Raymond A. Cassar

Spring is in the air and many High School students are excited about Prom and graduation parties.  For seniors, this is the end of High School and the beginning of the rest of their lives. 

For many young adults, celebrating with friends includes alcohol. Forty-five percent of twelfth graders report using alcohol. But most High School students really do not know what is at stake if they get arrested for a “Minor in Possession” (of alcohol),  commonly referred to as an “MIP.”

The first thing teens need to know is that police officers are in full force on Prom night.  They get lists from every school in the jurisdiction so that they do not miss this important event.  They are on the lookout and they mean business. 

The Police also love to attend Graduation parties.  They rarely get an invitation, but you can bet they know where the parties are.  They also count on neighbors who call in and eagerly point them in the right direction.  The police get a real bang for the buck when they bust a party.  They can write 20 or more tickets for under age drinking in a very short time, which is a whole lot simpler than hoping to run into some wayward kid who may have had consumed alcohol and now can’t find his way home.

Michigan Compiled Laws 436.1703 makes it a criminal misdemeanor for a “minor” (which is basically every High school student) to purchase, consume or even ATTEMPT to possess alcohol.  The phrase “attempt to possess alcohol” is the key here.  This means the law also applies to all of the students that may not have had any alcohol at the party, but are standing right next to the keg, or holding a bottle of beer for their friend.  The problem is that unless you are in another room playing a video game, if the police come in (and they always do) you stand a good chance of getting an MIP charge.  Rarely does only one officer come to the house, so trying to run away only makes things worse.  It is common for several police cars to be on the scene and that makes it a night to remember.

Contrary to what some teens think, getting an MIP is not something to brag about.  Getting arrested is not fun.  The jail cell you will be held in is very similar to an overcrowded public bathroom at a beach or concert.  Calling your parents from the jail (if the phone works) will provide you with a memory that literally lasts a lifetime for both you and your parents.  

Going to court is no picnic either.  Telling the Judge that you are going off to college in the fall rarely impresses the Judge.  While the fine on a first offense is only $100 the court also imposes work detail on weekends and community service and you have to pay to do the work program.  After all someone has to pay the retired police officers that supervise you while you are picking up trash from the side of the road. 

The court also places everyone on probation for 9 months to a year and again charges you $30 to $45 dollars a month for that privilege.  Suffice to say that the court experience is not enjoyable. Keep in mind that cleaning up the sides of the road while wearing a bright orange vest is demeaning, especially when someone you know drives by and beeps their horn to acknowledge you.

Additionally the Court may revoke your driving privileges, and may order alcohol counseling and ongoing alcohol testing – which you also have to pay for.

You need to also remember that in Michigan an MIP is a misdemeanor which means it is a crime that results in you having a criminal record. Colleges are not impressed with anything on your criminal record.  Future employers also are not amused when they run a record check and see a drinking violation.  Lying on a job application and hoping they will not find your misdemeanor makes working anywhere ten times harder since each day you worry about it popping up and losing the job.

Graduation parties and the memories of friends you have made in High School should last a lifetime.  Do not let an under age drinking event (and a criminal record) be part of those lasting memories. 

 The best way to avoid being arrested on an MIP is to steer clear of situations involving alcohol.  But mistakes happen and teens can “be in the wrong place at the wrong time.”  If you or someone you love has been charged with an MIP there are many things an experienced MIP lawyer can do to minimize the costs – and to keep you from ending up with a criminal record. We have represented hundreds of teens who have been arrested for MIP.

Call the Law Offices of Raymond A. Cassar, if you need help with an MIP in Michigan:   Oakland County: 248-855-0911     Wayne County: 313-278-8811.

Or visit our M I P website for more information:

http://www.michiganmiplawyer.com

The Unintended Consequences of State Government: Understanding Michigan’s Driver Responsibility Law

by Attorney Daryl Wood, JD

In an all-too-common story that is repeated over and over in the State of Michigan and all over the country, a person – we’ll call him George – is pulled over for speeding.  The officer gives George a break and only issues him a ticket for No Proof of Insurance on Person – this way, George doesn’t have to appear for a hearing.  The officer tells George, “Go to the courthouse, and get the ticket signed off, and you won’t have worry about appearing in front of the judge.”  Following the officer’s advice, George takes his ticket up to the courthouse.  As promised, the court clerk signs off on his ticket and charges George $25.  However, a few weeks later, George receives a surprise in his mailbox – a bill for  $200 in driver responsibility fees for each of the next two years.

Since money is tight, George sets up a payment plan with the Department of Treasury.  He struggles to meet the payments and misses one.  Because of his missed payment, George’s license is suspended.  Unable to pay off the assessment right away and facing the loss of his employment, George continues to drive to and from work.  It’s not long before he receives a ticket for Driving While License Suspended and another $500 driver responsibility fee assessment for each of the next two years.

Come tax time, George learns the hard way that if there is an outstanding driver responsibility fee, Michigan will intercept your state tax returns and take out the fee before sending you the rest of your tax return.  George is now stuck in an uncontrollable cycle, which continues and just about consumes him.

How Did This Happen?

In 2003, the State of Michigan enacted the Driver Responsibility Fee through 2003 Senate Bill 509, Public Act 165 of 2003.  Today the list of fees can be found at http://www.michigan.gov/driverresponsibility/0,1607,7-213-32166—,00.html.  In 2003 – much like today – the Michigan Legislature was struggling to balance the state budget, when they decided to mirror a New Jersey program for driver responsibility fees.  Statistics showed that New Jersey was boasting collection rates of 60% on these fees.  Hoping for the same results, Michigan anticipated raising $74.8 million dollars per year from Driver Responsibility Fees.  The Legislature adopted the driver responsible program, stating that its desire was to curb participation in serious driving offenses.  In reality, Michigan’s actual collection rate was somewhat lower than New Jersey’s, and ended up at 48.5% through 2008.

Unfortunately, the driver responsibility program has had a devastating effect on the lower-income residents of this state.  In 2005, there were 95,323 offenses involving Driving While License Suspended.  By 2007, that statistic rose to 44%, or 137,673 cases.  Since 2003, the State of Michigan has billed over $800 million but collected only approximately $400 million.

Many of the individuals that are assessed the driver responsibility fees are not even aware of the program until it is too late.  Assessments of $200 for No Insurance or No Proof of Insurance and assessments of $150 for Expired License commonly surprise individuals who generally are not advised in advance of the consequences of pleas of responsibility or guilt.  These fees don’t just hit you for one year, but they come back again the next year.

Unintended Consequences

Here is the problem:  The State created the program because it needed a new revenue stream, but even at the time they implemented it, their model for the program – New Jersey’s system – showed that they would never collect all of the fees.  This meant that over 40% of the people who were covered by the far-reaching umbrella of the driver responsibility program would never be able to afford to pay off their driver responsibility fees, and thus would end up with suspended licenses and continually multiplying bills.

The consequence of this is that the legislature’s new revenue stream became a direct hit to low-income families and individuals.  While the legislature knew that there was a very good chance that 40% of the people charged with these fees would be financially unable to pay, they failed to build a safety valve into the program.  There currently is no way for low-income people to petition for a reduction in the outstanding balances based on financial hardship.

Why was this bill enacted?  Those responsible for enacting the legislation wanted to be able to state to the public that they did not vote to raise taxes.  However, this is really a tax in disguise – a punitive measure on low income individuals without judicial oversight.

Thank you, State Legislators, for creating a new criminal class for the poor.  Even criminal restitution statutes allow for a person to avoid imprisonment based solely on their inability to pay.  However, now that driver responsibility fees are the law, many in Michigan people face jail time for Driving While License Suspended for no other reason than that they are unable to pay their bills.

Attorney Daryl Wood is an experienced Michigan defense attorney, and a recognized legal expert on Driver’s License suspension and restoration issues. If you have received a ticket, have had a license suspended, or have been subject to Driver’s Responsibility fees in Michigan, Mr. Wood can help and advise you.

Contact Mr. Wood at: 313.278.8811 or 248.855.0911. Or visit his web site at http://www.crimlawattorney.com or  http://www.drunkdrivingmichiganlawyer.com

Think Before You Tweet

by Sarah Blalock

Think that all your Facebook posts, Twitter tweets, and Myspace updates could never cause you any trouble?  Think again.

Thanks to the recent release during a lawsuit of several internal documents from the United States Justice Department and the Internal Revenue Service, we now know that the government is using social networking sites to investigate cases of all types.  According to an recent article in the Detroit Free Press by Associated Press writer Richard Lardner  (http://freep.com/article/20100316/NEWS09/100316040/1320/Careful-New-Facebook-friend-might-be-the-feds), agents are even going so far as to go undercover on these online sites in order to gather information about suspects or witnesses in criminal cases.  

While this is something that may just now be becoming public knowledge, the fact that law enforcement officers look to social networking sites such as Facebook, Myspace and Twitter to assist in their investigations is old news to those of us who defend people involved in computer-related crimes.  In fact, here at the Law Offices of Raymond A. Cassar, it is standard procedure for us to ask our new clients about their accounts on social networking sites, in order to be best prepared to handle their cases.  It is almost a given in this day and age that the prosecutor and police will be searching for our clients’ Facebook pages to see if they contain any incriminating evidence. 

Government agents, probation officers, and prosecutors can either go undercover by submitting a “friend request” on sites like Facebook, or by “following” a person on Twitter.  Once the agent is accepted as a friend or follower, they will have full access to the person’s page, and any posts or photos there.  Agents can pose as underage girls or boys in order to catch a person they believe is an online predator, or they can seek out photos of a person engaged in illegal activity such as drug use or underage alcohol use.  Often, agents don’t even need to go undercover – they simply have to click on the person’s social networking page.  Once they do, if the page is not set to private, they have access to a virtual goldmine of personal information.  Even if one’s profile IS set to private, police and probation officers may be able to access their information through a friend’s page that isn’t private – it all depends on how diligently they are willing to search.

In Michigan, the use of social networking sites for this type of investigation is of particular note.  If prosecutors can tie the commission of a crime to a person’s computer use, the penalties are even higher than they would be if that crime were committed “in the real world.”  Use of a Computer to Commit a Crime is a common felony charge in Michigan that can apply to all types of criminal cases – from Solicitation of a Minor to Fraud charges.  Use of a Computer to Commit a Crime can drastically raise the stakes and the potential penalties for anyone who is charged with that offense in conjunction with any other criminal charge.

Perhaps one of the most disturbing things about this new trend is that so many people feel “safe” online on social networking websites.  Because they have to approve or deny “friend requests,” many people generally feel that the information they are posting will only be disseminated to people they know and trust.  Lardner’s article, however, is a harsh reminder that when you are online, you are never truly private. 

So the next time you think about updating your Facebook status, or posting a new Tweet, think very carefully about what you are about to say.  “Big Brother” could be watching…

Sarah Blalock is an attorney at the Law Offices of Raymond A. Cassar, a Detroit Area Criminal Defense firm. Mr. Cassar has twenty years of experience in State & Federal Court. His office is happy to give advice regarding criminal matters. You may learn more about Attorney Raymond Cassar and Attorney Sarah Blalock by visiting : http://www.crimlawattorney.com/

Arenas sentenced

Well, Judge Morin from the DC Superior Court imposed his much awaited sentence on superstar Gilbert Arenas today.  As mentioned in the earlier post, Arenas faced charges on one count of a felony gun possession of an unregistered firearm in DC.  Prosecutors had asked for a three months jail sentence for Arenas, whose sentencing guidelines were 6 to 24 months in jail due to his two prior misdemeanors on his record. 

Ultimately, Arenas was sentenced to two years probation, which includes 30 days in halfway house and 400 hours of community service. He is also required to register as a gun offender and donate $5,000 to fund for victims of violent crimes. Arenas appeared to be remorseful and told Judge Morin that “every day [I] wish this never happened.”  Arenas’ attorneys sought to avoid any jail time by seeking  probation and community service, arguing the incident was a misguided prank with no intention to harm anyone. Further arguments on Arenas’ behalf were  that the guns were unloaded, that Arenas’ lighthearted comments about the incident were misinterpreted, and that he’s a good role model who excelled at community service throughout his good fortunes in the NBA.

Finally, for those out there who choose to take advantage or are forced to go down a plea deal route, it is very important to note what Judge Morin pointed out during his sentencing.  He said that an important factor was that he truly believed Arenas was remorseful.  Acceptance of responsibility is a huge factor taken into account by virtually all judges in every jurisdiction.  Accordingly, prior to every sentencing hearing, a good criminal defense attorney will prepare their clients, and make sure that they understand all the factors that will be addressed and taken into account by the judge.

Attorney Raymond Cassar is a Detroit Area Criminal Defense attorney who has twenty years of experience in State & Federal Court. His office is happy to give advice regarding all criminal matters. You may learn more about Attorney Raymond Cassar and his team of attorneys by visiting his website at:  http://www.crimlawattorney.com .

Gilbert Arenas sentencing

Gilbert Arenas is a three-time All – Star point guard in the NBA for the Washington Wizards.  However, today in DC Superior Court he will find out his sentence that will be imposed on him by Judge Robert E. Morin.  The question is whether Arenas will be sentenced to do jail time or get probation and community service for his one felony count of violating the District of Columbia’s strict gun laws.

The basic facts of this case are simple and unfortunately very foolish. Arenas and Crittenton were playing cards and got into a heated verbal joust while flying back from on the team plane on December 19, 2009.  Two days later, Arenas brought his guns to the locker room and in his words “played the prank” on Crittenton by placing the guns on the latter’s chair with the sign, “Pick 1.” Additionally, Crittenton then retrieved his own gun and ensured that Arenas knew he had a “piece” of his own. (Crittenton pleaded guilty in January to a misdemeanor gun charge and received a year of unsupervised probation.) Subsequent, Arenas entered a guilty plea on January 15th. 

 The maximum term for Arenas’ crime is five years. The sentencing guidelines for someone with his record call for 6-24 months, although those guidelines also allow for probation. The reason his guidelines start at 6 months is that Arenas has had two prior misdemeanor convictions for gun related crimes.  The sentencing guidelines take into account both prior record variables as well as offense variables to increase one’s guideline.  The top of one’s sentencing guideline may not exceed the top of the statutory penalty. Perhaps most important, Arenas’ sentence could determine whether the Wizards will attempt to void the remainder of his six-year, $111 million contract. 

Prosecutors demand a sentence of three months in jail.  Part of their argument is that Arenas’ showed a carefree type attitude throughout the proceedings, that he knew that bringing the guns to the locker room was illegal, that he has a prior gun charge and that he “joked about the incident to large groups, and stated that he did nothing wrong and felt no remorse,” according to assistant United States attorney Christopher Kavanaugh.

The defense has made good arguments to counter on behalf of Arenas, and attempt to persuade the Judge to grant Arenas probation and community service in lieu of a jail sentence. The crust of the defense argument is that Arenas played a much misguided prank but he had absolutely no intent to harm anyone.  Additionally, the guns were unloaded, the media misinterpreted Arenas’s light hearted comments regarding the case, and that he has been a positive role model for the community with much community service and charitable donations through NBA Cares and other charitable organization.  Finally, the defense argues that Arenas was confused about the DC’s complicated gun laws and that through his suspension the rest of the 2009-10 season he was already punished with the tens of millions lost in earnings and endorsements. 

The arguments put forth by both sides are fairly persuasive on their face.  The defense team is making the type of arguments that defendants should expect their clients to put forth in all types of cases.  Lack of prior history, positive impact on the community prior and subsequent to the offense, remorse for one’s actions after entering a plea deal are all factors that a well-trained criminal defense attorney should use to craft a persuasive argument on their client’s behalf at the sentencing hearing.   

Attorney Raymond Cassar is a Detroit Area Criminal Defense attorney who has twenty years of experience in State & Federal Court. His office is happy to give advice regarding criminal matters. You may learn more about Attorney Raymond Cassar and his team of attorneys by visiting his website at:  http://www.crimlawattorney.com .



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