Restoring your 2nd Amendment rights in Michigan is becoming more difficult each day. That’s my honest opinion. There are two different ways to obtain a firearm disability, Michigan law and Federal Law. A firearm disability means that a person may be prosecuted for possession of a firearm.

I started helping people restore their firearm rights because of my youth and hunting. For many years, I would travel to the U.P. in the fall for the best hunting trip. My crew and I would bow hunt for whitetail deer in the morning, followed by bird hunting for partridge and woodcock, and finally an evening bow hunt for that monster U.P. buck. It didn’t take long for me to appreciate how hunting is more than a hobby, hunting represents heritage, family, and friends. I am motivated to help people restore that heritage that they lost so many years ago due to a criminal law conviction. Our 2nd Amendment rights in Michigan are the pathway to one of the most enjoyable and fulfilling activities available to a Michigan resident.

There is nothing simple about restoring firearm rights in Michigan. Two bodies of law must be considered, State law and Federal law. To restore firearm rights, a person must be familiar with Michigan and the Federal crimes of possession of a firearm by a prohibited person. MCL 750.244f, MCL 28.424, 18 USC 922(g). In addition, a person must have a working knowledge of NICS background checks and various appeals available. A person must possess knowledge of the different criminal histories made available by the Michigan State Police. Finally, a person needs a working knowledge of the applicable federal court decisions related to the 2nd Amendment and the available remedies under Federal law.

Too many people do not appreciate that laws change over time. This change occurs through court decisions, amendments, or new laws through the legislature and presidential administrations. Right now, the restoration 2nd Amendment Rights in Michigan is in a period of rapid change. The Michigan legislature has passed reforms to the state expungement laws and expanded the pool of prohibited persons. The Michigan legislature and governor have expanded the use of the federal NICS background system. The Biden administration through its proxy, the FBI, is aggressively denying firearm purchases through the NICS background system. The legal environment for firearm restoration rights has changed dramatically in four short years, the message boards related to restoring 2nd Amendment rights in Michigan are all stale and outdated.

For a fee, $300.00, I will review a person’s criminal history and provide an assessment, under these new conditions, and determine whether restoration of their 2nd Amendment Rights in Michigan is possible. I will also provide what I believe would be the proper path, state court or federal court, to remove a firearm disability. Success is not guaranteed. Some people can not restore their 2nd Amendment rights in Michigan. Furthermore, the removal of a firearm disability takes time, it can’t be accomplished in a month. I am offering clarity and peace of mind to all people frustrated by the contradictory information on the World Wide Web. The intent of this assessment is to be the first step toward removing a firearm disability. I will provide the client with a detailed list of questions, then make an assessment of whether restoration of the client’s 2nd Amendment rights is possible and provide the client with a plan for proceeding. In other words, this is the beginning of the process.

Please visit my firearm restoration blog.

The post Need Help Evaluating Restoring Your 2nd Amendment Rights In Michigan? appeared first on Benedict.

A conviction for the following offenses will cause a defendant to lose their gun rights in Michigan:  

750.81(2)  Domestic violence 93-day maximum jail sentence.  

750.81(4) Domestic violence 2nd offense, 1-year maximum jail sentence

750.81a(2)  Domestic violence aggravated injury 1year maximum jail sentence

750.115(2)  Entering a building without permission, domestic relationship, 90-day misdemeanor. 

750.145n(5)  Vulnerable adult abuse 4th degree, domestic relationship 1-year maximum jail sentence

750.377a(1)(d)  MDOP personal property domestic relationship 1-year maximum jail sentence

750.377a(1)(f) MDOP personal property domestic relationship, 93-day maximum jail sentence

750.380(5)  MDOP buildings, domestic relationship, 93-day maximum jail sentence

750.380(7) MDOP buildings, domestic relationship, second subsequent

750.411h(2) Stalking, 1 year or 5 year, domestic relationship

750.540e(1)(h)  Malicious use of telecommunications device, domestic relationship

In a nutshell, the Michigan Legislature has expanded what was typically known as domestic violence.  Domestic violence implies physical contact or threatening harm to the victim.  That is no longer true in Michigan.  750.540e(1)(h) Malicious use of telecommunication devices prohibits the following through the use of a cellphone:  (a) Threatening physical harm or damage to any person or property in the course of a conversation or message through the use of a telecommunications service or device. (b) Falsely and deliberately reporting by message through the use of a telecommunications service or device that a person has been injured, has suddenly taken ill, has suffered death, or has been the victim of a crime or an accident.  (c) Deliberately refusing or failing to disengage a connection between a telecommunications device and another telecommunications device or between a telecommunications device and other equipment provided for the transmission of messages through the use of a telecommunications service or device. (d) Using vulgar, indecent, obscene, or offensive language or suggesting any lewd or lascivious act in the course of a conversation or message through the use of a telecommunications service or device. (e) Repeatedly initiating a telephone call and, without speaking, deliberately hanging up or breaking the telephone connection as or after the telephone call is answered.(f) Making an unsolicited commercial telephone call that is received between the hours of 9 p.m. and 9 a.m. As used in this subdivision, “an unsolicited commercial telephone call” means a call made by a person or recording device, on behalf of a person, corporation, or other entity, soliciting business or contributions. (g) Deliberately engaging or causing to engage the use of a telecommunications service or device of another person in a repetitive manner that causes an interruption in telecommunications service or prevents the person from utilizing the person’s telecommunications service or device. (h) Engaging in any of the conduct prohibited under subdivisions (a) to (g) if the person and the other person are spouses or former spouses, have or have had a dating relationship, have or have had a child in common, or are residents or former residents of the same household. As used in this subdivision, “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional involvement. This term does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context.

It is now possible to lose your gun rights in Michigan if one uses vulgar, indecent, or obscene language in a text message.  A far cry from threatening violence or actual physical activity against a loved one.  

An interpretation of the new group of “domestic violence” crimes leads to the conclusion that a romantic couple needs to be very careful when they either argue or split up. MCL 750.115(2)  “Entering a building without permission” prevents a person from a person from entering a residence to retrieve clothing or property after a breakup.  Using indecent language to your former significant other may lead to a Malicious use of a telecommunication device charge and conviction.  Destroying or throwing out of your ex’s property could lead to a “Malicious Destruction of Personal Property” charge and conviction, MCL 750.377a(1)(d). 

Noteworthy, there is a Federal criminal statute that prohibits felons from possessing a firearm.  18 USC 922 (g) prevents a person convicted of a misdemeanor crime of domestic violence from possession of a firearm.  However, Federal law does not extend “domestic violence” into the realm of misdemeanor-level indecent or lewd language, destruction of personal property, or entry into residences without permission.  As far as misdemeanors go, Michigan is far more expansive, or far more intrusive into the 2nd Amendment, compared to the Federal Government.   

The only saving grace to combat this assault upon the 2nd Amendment and our God-given right to defend ourselves is the county prosecutor.  Each county prosecutor will have to authorize these charges under the “domestic relationship” classification.  I still believe that most county prosecutors are level-headed and will make appropriate decisions related to a Michigan citizen’s 2nd Amendment rights.  However, there are always elected zealots who are eager to cause you to lose your gun rights in Michigan.   

Once a person has a conviction within the domestic violence category, MCL 750.224f permits the same person to be prosecuted for a 5-year felony if found in possession of a firearm or ammunition.  This firearm disability, the ability to be prosecuted under MCL 750.224f, lasts for 8 years following the termination of the defendant’s probation or parole.  After the expiration of the 8-year prohibition period, a Michigan citizen may possess a firearm again, so long as there isn’t a similar federal firearm disability in place.  

To learn more visit my firearm restoration blog.

The post 11 New Ways to Lose Your Gun Rights in Michigan appeared first on Benedict.

Michigan’s Automatic Expungement Equals Total Chaos

Michigan’s Clean Slate has been fully implemented, including the automatic expungement. MCL 780.621(g). Automatic Expungement means that criminal convictions found on a person’s criminal history will fall off or disappear after a set amount of time passes. The process is handled entirely through the Michigan State Police and does not require court involvement. Initially, it appeared that the automatic expungement of a felony conviction in Michigan would remove the federal firearm disability from 18 USC 922(g). However, news reports began to appear about how the FBI would not honor Michigan’s new automatic expungement. FBI won’t recognize some of Michigan’s new expungements for gun background checks, The Detriot News, Beth LeBlanc, April 26th, 2023. Specifically, the FBI would not remove the conviction from the NICS database without a court order or a request from the state. The Attorney General announced that her office would not seek orders as required by the FBI’s ruling. The net result is chaos in Michigan. Multiple people have spoken to me regarding how they purchased firearms after their felony conviction was expunged via automatic expungement, through an FFL, only to be denied for a subsequent firearm purchase. In a nutshell, “Last week I could purchase and possess a firearm, this week I can not.” Needless to say, all who have gone through this chaos are understandably upset. They are now in jeopardy of a federal firearms possession charge. For those Michigan citizens who have been caught up in this chaos, if you find yourself charged with a federal firearms crime, remember this defense, “entrapment by estoppel.” Insist that your attorney research this defense and use it.

Using Automatic Expungement As A Weapon

Automatic expungement has now become a weapon against the 2nd Amendment. There is no language found in MCL 780.621 that would lead someone to believe that an automatic expungement would be anything but an expungement the same as an expungement by application. Every month, more felony convictions are being automatically expunged and people believe that they may purchase and possess a firearm. Only to find out after the fact that they may not exercise their 2nd Amendment rights. There is no language, statute, or procedure, found in MCL 780.621 to secure a court order after an automatic expungement. Is this what our politicians intended? The legislature has created a mechanism that permanently deprives Michigan citizens of their constitutional rights. It is stealthy, it happens without the citizen’s knowledge. There is no notice to a person about to be exiled into a permanent federal firearm disability. The conclusion after an automatic expungement, that being, a clean criminal history, capable of advancing someone’s employment, improving housing, improving job opportunities, and social stature but preserving a firearm disability sounds like the perfect solution for a gun control-minded politician.

Avoid The Chaos Act Now

To the reader, don’t squander your ability to remove a federal firearms disability created by a felony conviction by sitting on your thumbs and waiting for automatic expungement to remove your conviction. The waiting periods after a conviction for expungement by application and expungement by automatic expungement are different. There is a small time window where a person qualifies for an expungement by an application before automatic expungement does its dirty work. If you value your 2nd Amendment rights, calculate when you are eligible to remove a conviction by application and file the application.

The post Michigan Automatic Expungement and Firearm Rights appeared first on Benedict.

The most important factor for affordable family law is the attorney’s hourly rate.

The hourly rate is king when it comes to affordable family law. Most people don’t know how the hourly rate contract works. The minimum fee per attorney contact is 1/10th of the hourly rate. For example, an attorney hourly rate of $200 an hour means that for each email, text message, or phone call, the client will be charged a minimum of $20. Once the contact, communication, or call last over 6 minutes, another $20 is billed, and so on. You can see how legal fees add up quickly. This is particularly so for a client that calls or texts often. This is why I advocate for people to come to their lawyer prepared. How does a family law client show up prepared? Read my block on creating a “family law notebook” here. If the client spends a couple of hours organizing their case before speaking to a lawyer, the savings can be substantial. On the other hand, if a client just walks into a lawyer’s office and just tells their story, it will take a lot of time for the attorney to ask questions and draw out the important facts, but beneficial for the client’s case and harmful for the client’s case. The most important question for a family law client to ask of a prospective attorney is “what is your hourly rate?” I recently spoke to a friend who didn’t hire me, instead, he hired someone else. He gave this lawyer 4k for a divorce. When he described the divorce to me, what he described was what we call a “no contest” divorce. A “no contest” divorce is when the parties agree not to fight and amicably divide the marital estate and come up with a fair child custody schedule. The attorney would likely spend time drafting a consent judgment of divorce, that’s it. My friend’s lawyer managed to eat up the entire 4K deposit. That begs the question, what was this attorney’s hourly rate?

An affordable plan for Northern Michigan.

Here is the deal. This deal is not available for divorce or child support motions. This deal is only available for a motion to change custody, parenting time motions, and a motion to relocate residence. The client must have a job, making at least 37K per year. That works out to $18 dollars an hour. If the client doesn’t have a job, I will consider representing them if they can come up with the advance and find a contract co-signer. For an advance of $2500.00, I will half my hourly rate for the client. This sweetheart deal is available until May 30th, 2023, which means signing a contract and paying the advance prior to May 30th, 2023. The deal is available for Grand Traverse, Leelanau, Antrim, Kalkaska, Wexford, and Benzie counties. I am a good attorney with a five-star rating on Google, look up my reviews and read them. 231-883-4170

The post Affordable Family Law in Traverse City appeared first on Benedict.

The post CC 320 Domestic Relations Verified Financial Information Form appeared first on Benedict.

The post No One Was Hurt But I Am Charged With Domestic Violence In Michigan appeared first on Benedict.

The post Driving With An Ignition Interlock Device In Michigan appeared first on Benedict.

The post Domestic Violence in Michigan Should I Take The Deal appeared first on Benedict.

Why is it important to thoroughly prepare a firearm restoration case?

Restoring firearm rights in Michigan can be tricky. First, the firearm rights restoration statute, MCL 28.424, does not require the presence of the local prosecutor. Nearly everything, all lawsuits, are adversary proceeding, which means two sides are fighting it out in court. Not so in firearm rights restoration. Most of the time there is just the judge and petitioner. Judges are used to two sides flushing out the necessary facts of each case. When there is just one party presenting evidence, the judge will get nervous. The Judge will think, “Am I getting the full story?” To ease the Judge’s mind, a petitioner must be thorough. A thoroughly prepared petition and presentation will convince the judge that he/she isn’t getting bamboozled. For example, one of the requirements of a firearm restoration case is the petition completed parole successfully. Sure, the petitioner may testify in court that he/she doesn’t remember any issues while on parole ten years ago. But is that convincing? Wouldn’t it be better to produce the petitioner’s parole discharge papers? This sort of extra step leaves no lingering doubt in the mind of the Judge. I tell all of my firearm restoration clients the same thing, “My goal with petition and brief is to prepare these pleading thoroughly so that anyone that reads the documents will not have any lingering doubts.” Although the statute doesn’t mandate a prosecutor enter an appearance, Michigan caselaw permits a prosecutor to challenge a Petition to Remove a Firearm Disability. My goal is to prepare the case to the point that if a prosecutor reads my petition and brief, he/she will not find something to argue in court and decide their time is better spent elsewhere. The Order to Restore Gun Rights in Michigan.

The order to restore firearm rights.

I have written on the dual nature of firearm rights, State rights vs Federal rights, several times. Visit my gun rights restoration blog. It would be easy for someone to restore their Michigan firearm rights and erroneously believe that their federal firearm disability has also been removed. This could lead to a federal arrest for a felon in possession of a firearm. No Judge wants to believe that they contributed to a person unwittingly committing a federal crime. Even the order is designed to make the Judge feel comfortable signing the order by prominently declaring that this Judge is not touching anything related to federal firearm rights. In other words, the order puts the Petitioner on notice that he/she may be prohibited from possessing a firearm by federal law. Call it a built-in “cover the Judge’s ass” clause in the order.

The post Case Preparation for a Firearm Rights Restoration Case appeared first on Benedict.

What happens between a conviction and sentencing?

A conviction occurs when a defendant admits to the crime during a plea hearing. Notice I didn’t say the defendant entered a guilty plea. The court must hear facts that establish that the defendant perpetrated the crime. It is not enough for a defendant to just say, “I plead guilty.” The defendant must give testimony that establishes the elements of the crime. For example, in every plea hearing for DUI, the defendant must admit that he/she consumed alcohol before driving. A conviction may occur following a trial in court. At the end of every trial, the fact finder, either a judge or a jury, must decide whether the defendant committed a crime. If the fact finder renders a guilty verdict, then the defendant is convicted of the crime.

After a conviction, a lot of work must be completed. In Michigan, if the crime is a felony, a parole officer must complete a presentence report for the circuit court judge. Criminal sentencing for a felony conviction is very complicated. Michigan has sentencing guidelines that must be worked through before sentencing. This process takes time. Once the report is completed, the report must be shared with the defendant and his/her defense attorney. The defense attorney must review the presentence report and determine if there are any errors. The errors claimed by the defense attorney will be argued at the sentencing hearing for the defendant.

There are no formal sentencing guidelines for misdemeanor convictions in Michigan. When I started practicing law, criminal sentencing for a misdemeanor was like the Wild West, one wrong move and the defendant could be hammered by the judge. Today, a sentencing judge in District Court does have some limited guidelines to follow. Not every misdemeanor conviction requires a presentence report in District Court. Court resources are stretched thin today, a judge may not order a presentence report before a misdemeanor sentencing hearing. If a presentence report is ordered, the defendant will meet with a county probation officer. The probation officer will make sentencing recommendations to the judge. The judge may or may not follow the recommendations. A good criminal defense attorney can convince the judge to adopt a sentence that is more favorable for a defendant.

What is allocution at criminal sentencing?

The “right of allocution” is the ability to speak to the sentencing judge before a criminal sentence is rendered by a judge. The judge will look at the defendant and say, “Is there anything you would like to say to me before I render your sentence?” Sometimes a judge will become so angry with a defendant that the judge cuts off or skips allocution altogether. This is a reversible error in Michigan. People v Bailey, 330 Mich App 41, 944 NW2d 370 (2019). A good criminal defense attorney will help a defendant find his words. Allocution is very important for a misdemeanor sentencing hearing. Recall in Michigan, there are no formal sentencing guidelines that a judge must follow. During allocution, the defendant or his/her defense attorney should humanize the defendant, demonstrate the defendant is ready to make changes, demonstrate the undesirable impacts upon the defendant’s family due to incarceration, and demonstrate the defendant deserves leniency because the defendant will do well on probation. How exactly this is done is different for each case. Criminal sentencing requires preparation by the defense attorney and the defendant.

Criminal Defense Attorney for Traverse City

I practice criminal law in Northern Michigan. I can help people navigate the criminal sentence process in Traverse City.

The post What Is Criminal Sentencing in Michigan appeared first on Benedict.