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In The News

Tuesday, August 9, 2022

When Criminal Charges Issued Against You Just are Not Fair

By Michael Nichols
Categories: Carry and Conceal

At the Nichols Law Firm - one of our associates, Jackee Moss, earned a dismissal with prejudice at 54a District Court in Lansing based on a ruling on the merits during a preliminary examination on charges of carrying a concealed weapon -- a felony charge. We put in a lot of work to prepare for the hearing and Jackee executed the plan to perfection. His bullet points:

• Client was a CPL holder, however his CPL was suspended due to a PPO against him (PPO had nothing to do with a gun)
• Per the Michigan Firearms Act, when a PPO is issued against a CPL holder, it triggers a suspension of a CPL
• Our client never received notice of this suspension – as indicated by L.E.I.N.
• Our client was a passenger in a vehicle that was stopped for no license plate
• Officers allege the vehicle stopped too slowly which caused them to do a more in-depth investigation into the vehicle occupants
• Our client initially denied being armed but eventually disclosed his possession of the firearm to officers after they told him they would not take him to jail for a CCW violation
There is caselaw that is partially on point, and it was not our friend:  People v. Brown, 330 Mich. App. 223.  The court in Brown ruled that the government is not required to prove that the person accused had notice that he was not allowed to carry a concealed pistol.
The prosecutor did not cite Brown.  However, they put forth the argument that the client was carrying a concealed weapon and he knew or believed that his CPL was suspended based on statements that the accused made during the traffic stop and were also captured by the officer's Body Worn Camera (BWC).
I asked the court to take judicial notice of two documents, the PPO and MCR 3.705(A)(2).  I was going to use the combination of these documents to argue that the PPO was invalid because it did not meet the statutory requirements put forth in the court rules.  The Judge denied my request to take judicial notice of the documents stating that the validity of the PPO was an issue to be addressed with the Circuit Court.
I was able to accomplish two big things on cross: (1) I showed the court a later portion of the officer’s BWC where client discusses having his CPL.  I used these contradictory statements by the client to rebut the PA’s argument that he knew or believed his CPL was suspended.
(2) I was then able lay the foundation on cross-exam of the officer, to get the PPO admitted into evidence.
I then advanced the following arguments in closing: 

My client did not know that his CPL was suspended;

that he engaged in behavior that his CPL expressly granted, and

that the State should not be able to charge someone when the CPL that was issued did not preclude the client from engaging in lawful behavior.

Secondly, I pointed out the Circuit Court had the ability to prohibit client from purchasing or possessing a firearm BUT that box was not checked.  
The judge agreed with both of my arguments and stated that the State issuing these charges was “putting the cart before the horse.” 

Case dismissed.

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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.