In The News

In The News

Monday, March 4, 2013

A Client of Nichols Law Firm Originally Charged With Restricting and Obstructing and Operating While Intoxicated With an Occupant Less than 16 Receives No Jail or Probation at Sentencing

By Michael Nichols
Categories: Josh Covert

A few months back Attorney Joshua M. Covert of the Nichols Law Firm met with a client who was looking to replace his court appointed attorney.  The client was unhappy with the way his case was progressing and wanted to speak with an attorney who was familiar with alcohol blood testing requirements and procedures.  The client was charged with felony restricting and obstructing (MCL 750.81d) and operating while intoxicated with an occupant under the age of 16 (MCL 257.625n).  The client also refused to take an evidentiary breath test and was facing an implied consent violation which would have suspended the client’s driver’s license for a year.  Further complicating matters, the client’s felony charge was being enhanced to fourth habitual offender status which could have resulted in a prison term of 15 years.

After speaking with Mr. Covert, the client retained his services and Mr. Covert replaced the court appointed attorney.    The first order of business was for Mr. Covert to send out a demand for discovery and a Freedom of Information Act (FOIA) request.  When Mr. Covert received the requested information he reviewed the search warrant and the search warrant affidavit and noticed some problems with the paperwork.  Mr. Covert discussed the issues with the prosecutor on the day scheduled for a preliminary exam and after negotiating with the prosecutor it was agreed that the felony charge and the implied consent refusal would both be dismissed if the client would plead guilty to operating while intoxicated with an occupant less than 16 years old.  This was great news for the client as he would not lose his driver’s license for a year and was no longer facing a possible 15 year prison sentence.  

It wasn’t over though; Mr. Covert and his client had to prepare for sentencing.  Sentencing is a very important part of representation and is often overlooked.  Mr. Covert obtained the presentence report the day before sentencing and then discussed the report with his client.  The presentence report was surprising in that the probation officer had recommended to the court that the client should serve 1 year in jail which is the maximum sentence for the operating while intoxicated with an occupant under 16 years old offense.  The probation officer felt that due to the client lengthy criminal record he was not a good candidate for probation.  

Mr. Covert reviewed the criminal history with his client and it was determined that some of the criminal history was in error and that the client was not convicted of some of the crimes listed.  Mr. Covert went before the court at sentencing and asked for an adjournment so that research could be done to show that the criminal history was not correct.  An adjournment was granted.  Mr. Covert and his client then worked hard to obtain information about the disputed criminal convictions.  Mr. Covert also had his client start attending Alcoholics Anonymous (AA) meetings. 

When the sentencing hearing was finally held, the judge gave the client the benefit of the doubt and found that several of the convictions were not his.  At one point during the sentencing the judge stopped Mr. Covert from speaking and told him that no further allocution was necessary and that he would sentence his client to fines and costs.  This meant that if the client paid his fines and costs he would not receive probation or jail.  Mr. Covert had prepared his client for the fines and costs and the client paid in full before leaving the court house.  This was a great resolution for the client as he was originally facing up to 15 years in prison and walked from the court house with no further obligations to the court.  If you have been charged with a felony or misdemeanor offense call the Nichols Law Firm and speak with attorneys who work hard all the way from arraignment to sentencing.  Call 517-432-9000.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.