Michigan Attorneys for Criminal, DUI,
and Driver's License Restoration Cases.
Felonies and Misdemeanors: Pt. 1 - Misdemeanors
In this and the following section, we’ll take very basic look at these 2 distinct kinds of criminal offenses, and see how and why they’re different, and why that matters any person facing one or the other.
This section will focus on misdemeanor cases, and the next section, part 2, will examine felony cases.
Misdemeanor charges fall within the jurisdiction of and are almost always handled in the local district courts, although they can be resolved in the county circuit courts - but that only happens when they are transferred (“bound over” or “sent up”) along with other felony charges made against a person.
Most people know that a felony is a more serious crime than a misdemeanor. Beyond that, things aren’t so clear.
The lowest-severity of criminal offenses are called misdemeanors.
A Misdemeanor is a criminal offense that is punishable by NO MORE than 1-year in jail
To be clear, the maximum possible punishment in any case does not mean that a Judge must impose it. In fact, in many cases, going to jail is highly unlikely.
Jail is different than prison. Jails are county facilities that can hold a person for up to 1 year.
A prison is run by the Michigan Department of Corrections, and can hold someone for life.
With extremely few, highly technical exceptions, someone incarcerated for 1 year or less will go to jail
Thus, a person convicted of a misdemeanor offense can only be sent to jail, not prison.
Misdemeanors can be further broken down into several categories. We’ll begin with the most common (and least serious)
These are the least severe of all offenses, carrying a maximum possible jail penalty of no more than 93 days, and usually a fine of no more than $500. There are 2 kinds of 93-day Misdemeanors:
1. Local Ordinances
Many misdemeanor charges are crimes that violate a local ordinance. These are known as ordinance violations. The prosecutors in these cases are called the city or township attorneys.In most places, the city or township attorney is part of a private law practice. These firms, or individual attorneys, submit annual bids to the city council or township board to be hired for all of the municipality’s legal work.This means that they represent the city or township in all civil lawsuits, zoning cases, as well as handle all the criminal ordinance cases. This very often also means that as private practitioners, they are sensitive to the relationship between the defense attorney and his or her client.In fact, plenty of these city and township attorneys will take cases for people facing criminal charges elsewhere for the very same kinds of offenses they prosecute in the city or township they represent.Whatever else, this means that they know what it’s like to sit across a desk from a client, take their money, and go out and try to make things better for them.Local ordinance violations are always the least serious of any offenses, and, by law, can only be punishable by a maximum fine of $500, plus costs, and no more than 93 days in the county jail.
2. State Law Offenses
The second kind of 93-day misdemeanor is a State Law violation, which as the term implies is punishable by no more than 93 days in jail, and, like a local ordinance violation, also carries a maximum fine of no more than $500.The difference between a state law 93-day misdemeanor and local ordinance offense is simply who enacted the law (i.e., the municipality or the state).This can get deeper than we need to go, but one of the more important implications is money. When a person is charged under a local ordinance, the municipality gets to retain a bigger share of the fines and costs than when a case is brought under state law.Whereas local ordinance offenses are prosecuted by the municipal attorney, state law cases are always handled by an attorney from the County Prosecutor’s office.
There are very few offenses that are legally designated as a 6-month misdemeanor offenses in Michigan.
In fact, the only one that comes to mind is Michigan’s “super-drunk” law, Operating While Intoxicated with a BAC of .17 or Greater, (OWI with BAC of .17 or higher), most commonly called “High BAC.”
High BAC can only be charged is a 1st offense DUI case. It is an upgrade from a regular 1st offense (which is punishable by no more than 93 days in jail), but less serious than a 2nd offense DUI (which is punishable by up to 1 year in jai), and stands between the two.
These are almost always state law cases, because under Michigan Law, with a few specific exceptions, a local municipality cannot enact ordinances that carry a penalty greater than 93-days in jail.
High BAC carries a maximum penalty of up to 6 months in jail.
Beyond High BAC charges, just about every other 6-month misdemeanor is actually the result of an amendment to a what was originally brought as a 1-year offense. We’ll skip any analysis of it here, but It is worth noting that under the law, the attempt to commit any crime is punishable by half the potential sentence of the completed act.
This means, then, that if a person is charged with a 1-year misdemeanor offense (we’ll look at those next) but manages to have it reduced to an “attempt,” then the maximum possible sentence he or she faces is cut in half, making it a 6-month misdemeanor.
In the real world, this kind of deal almost never happens when someone is charged with a 93-day misdemeanor, and is far more common when someone is facing a 1-year offense.
1 Year Misdemeanors
The most serious of all misdemeanor offenses is a 1-year misdemeanor. These are always state law cases, because under Michigan Law, with a few exceptions, local municipalities cannot enact laws covering 1-year misdemeanors.
The term “one year” means that these offenses are punishable by up to, but not more than 365 days in the county jail.
To see how all of this works in real life, let’s use an example wherein a person is charged with Driving While License Suspended (DWLS).
If a person is charged as a 1st offender, it can be written up as either a local ordinance or state violation. Either way, a first offense for this crime is limited to a maximum punishment of no more than 93 days in jail.
If a person has been convicted of DWLS before, and is later charged with Driving While License Suspended 2nd offense (DWLS II) then he or she faces up to 1 year in jail, which means the case must be brought as a state law offense.
This works the same way for misdemeanor Drunk Driving cases:
All 1st offenses (other than High BAC cases) are 93 day misdemeanors, whether charged under local or state law.
High BAC is punishable by a maximum of 6 months in jail, and is almost always a state law case.
A 2nd offense DUI, punishable by up to 1 year in jail, is also almost always a state law case.
The thing to remember about misdemeanors, though, is that they are an entirely separate and - most important - less serious category of offenses than felonies. No matter what, the maximum possible penalty tops out at a year in jail, meaning that a person is never at risk to be sent to prison for a misdemeanor conviction.
That said, and for the most part, unless someone has a horrible prior record, being sent to jail for the maximum possible term (93 days, 6 months, or 1 year) is highly unlikely in any misdemeanor case.
Indeed, keeping the client from doing any jail time is always job # 1 for a lawyer, and that’s really the whole point of hiring one in the first place.