In The News

In The News

Wednesday, June 10, 2015

Michigan Lawmakers Expand The Holmes Youthful Trainee Act: Can I Take Advantage and Help My Kid or Myself Keep a Criminal Conviction Off My Record?

By Michael Nichols
Categories: Karen L. Phillips

You get the phone call that no parent wants to get: "Mom, Dad: I’m in jail!" So what happens next? Will my child, for whom I worked so hard to help succeed avoid the lifetime stain of a criminal conviction and all its shackles? One of the most common things many criminal defense lawyers want to pursue when this situation comes up is the often-misunderstood Holmes Youthful Trainee Act (HYTA).

HYTA is a law that allows youthful offenders facing a criminal conviction to avoid a lifetime stain so that the conviction will not be seen by the public. The person must comply with a period of "probation." It is intended to make sure that the individual is willing to follow society’s rules and prove to the court that he is not going to commit another crime. It applies to misdemeanors as well as felonies.

For many years the HYTA opportunity was very limited so that only people within the ages of 17-21 were eligible. Now, the age bracket has expanded to age 24. The reason is legislation just signed into law by the governor. The bills also give judges expanded power to put young people in prison even though they receive HYTA.

Remember: HYTA does NOT apply to drunk-driving, drugged-driving or any vehicle code violations, serious sex crimes such as criminal sexual conduct 1st-3rd degree or murder.

There are many questions that parents or young people have about HYTA probation:

Do I have to plead guilty? Yes. In order to be eligible for HYTA the person must plead guilty to the offense. That may be the offense that they have been charged with or another offense if agreed upon with the Michigan prosecuting attorney.

How old do I have to be to be eligible for HYTA? For the Judge to make the determination whether a person should receive HYTA you currently must be at least 17 years old and under 21 years old when the crime was committed. However, as of August 18, 2015, the age expands to 24 years old. The eligibility period will end the day before the person’s 24th birthday.

How does HYTA actually work? In order to get HYTA the person must plead guilty to a agreed-upon charge. At the sentencing hearing the judge will order HYTA, set the terms such as length of time that he will be on probation and what he will have to do while he is on probation.

Can anyone see my criminal record? The public cannot see any criminal conviction. The record is sealed from public view while it is pending (in theory). However, the court that is handling the case will have a record of it and law enforcement will have the information in LEIN. LEIN is the Law Enforcement Information Network, and only courts, law enforcement and prosecuting officials have access to it.

Can anyone see my arrest for this crime? Depending on whether the crime is a misdemeanor or felony there may be information of the arrest on the criminal history. The Michigan State Police (MSP) is required to keep records of arrests, charges and convictions. If there is record of it through the MSP, what likely will appear are what the arrest was for and what the final charge was at “disposition” or sentencing. A downside to HYTA is that ultimately you do not know how "visible" the footprint is and significant anecdotal evidence exists that an HYTA conviction still leaves a person with some type of shackle moving forward.

How does HYTA affect job applications? When filling out job applications there are many different ways that employers ask questions about arrest and conviction history. Some ask whether there are convictions for any crimes. Some ask whether there are convictions only for felonies. Others ask for any arrests. If HYTA status is granted the question whether or not a person has been arrested for a crime must be answered “yes.” However, the question of whether or not a person has been convicted of a crime would be answered “no” with HYTA.

Will I have to serve jail time? If the charge is a misdemeanor, then jail is not likely. If the charge is a felony, it is possible. That would be up to the judge to determine based on the circumstances of the case and the accused. If the HYTA probation is violated, there is also the significant probability of serving jail time.

How long do I have to be on probation? The maximum period of probation for a misdemeanor offense is 2 years. The maximum period of probation for a felony offense is 5 years. The judges do not often sentence to the maximum period allowed for probation.

What happens once I successfully complete my HYTA probation? There would not be any public record of the conviction (but see above).

What if I violate my HYTA probation? The judge has the ability to take the HYTA status away or leave it in place if there is a violation of probation. Under the new law, there are certain cases in which the judge must revoke HYTA. Often the first thing the judge will do if there is a violation is take the HYTA status away. Since there was a guilty plea, the conviction would then be on the person’s criminal record. Sometimes the judge will allow the HYTA to continue and see how the person continues to behave while on probation. The more serious and negative the behavior while on probation, that more serious and negative the punishment would be.

For the lawyers on the cutting edge of the law, make sure YOU know all the details of any proposed result for your case, and who are committed to results, call Karen Phillips or the other lawyers at the Nichols Law Firm at 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.