EXPUNGE A DRUNK DRIVING CONVICTION

expungement

For the first time in Michigan, first-time OWI (a.k.a. drunk driving) offenders will be eligible for record expungement under House Bill 4219 and House Bill 4220.

The bills give those with OWI convictions the option to seek expungement of their first offense five years after probation ends. Applicants must submit a petition to the court, which would be reviewed and determined by a judge. Incidents that caused death or serious injury to a victim are not eligible.  

Together, the bills allow for the criminal record expungement of first-time offenses for: 

  • Any person operating a vehicle with a BAC of .08 or more 
  • Any person operating a vehicle while visibly impaired by alcohol or other controlled substance 
  • A person under 21 years old operating a vehicle with a BAC of .02 or more 
  • Any person from operating a vehicle with any bodily amount of cocaine or a Schedule 1 controlled substance 

However, an individual is not eligible if:

  • It is not a first time conviction;
  • The offense was committed while operating a commercial motor vehicle; or
  • The offense caused injury or death.

In signing the bill, Governor Whitmer said, “These bills allow Michiganders to move on from a past mistake in order to have a clean slate. We must clear a path for first-time offenders so that all residents are able to compete for jobs with a clean record and contribute to their communities in a positive way.”

An estimated 200,000 Michiganders will become eligible when the law takes affect in February 2022.

Follow the link below to watch a video of Barry County Judge Schipper’s opinion on the new law and why he supports the change.

If you would like to learn more about this subject, please contact Tripp, Tagg & Storrs, Attorneys at Law, call 269-948-2900 or 269-945-2242 or visit www.tts.law.

*This blog is intended for informational purposes only and does not constitute legal advice. Please consult an attorney before making important decisions regarding your individual situation.

Off-Road Vehicles

Off Road Vehicles (ORV) are very popular and can be a fun activity for everyone. Recently, the DNV releases a top 10 list of ORV (Off Road Vehicle) violations that their officers encounter. The list and link are provided below.

If you are an ORV enthusiast, it may be helpful to review the list to avoid a ticket and negative encounter with a conservation officer or other law enforcement.

TOP 10 ORV VIOLATIONS AND TIPS TO AVOID THEM:

  1. OPERATING ORVS AT EXCESSIVE SPEEDS. Speed was one of the primary contributing factors for ORV accidents reported in 2020. ORVs should be operated at a rate of speed safe for existing conditions and the capabilities of the rider and machine.
  2. CARELESS OR RECKLESS RIDING. Along with speed, careless or reckless riding were among the top contributors for ORV accidents reported during 2020. ORVs may not be operated in a careless manner, in attempt to kill an animal or bird, while transporting open alcoholic beverages. Reckless and careless operation of an ORV are civil infractions, including fishtailing, doing donuts, locking up the brakes and riding in a manner that causes environmental damage.
  3. NO ORV LICENSE OR TRAIL PERMIT. An ORV is required to be licensed when operated on public lands, including federal, state and county roads that are open to ORV use. ORV trail permits are required when operating on the state-managed trail system. Find federal and state areas to ride on the DNR’s website; check with the county sheriff’s office for county roads open for ORV use.
  4. ALLOWING AN UNSUPERVISED MINOR TO OPERATE AN ORV. Legal guardians and the owner of the ORV are required to maintain direct, visual supervision of youth under the age of 16 operating an ORV. The legal guardian is responsible for any violations a youth commits while operating an ORV.
  5. NO ORV SAFETY CERTIFICATE. In addition to being supervised by an adult, ORV operators under age 16 in Michigan must complete an approved ORV education course and carry their safety certificate anytime they are operating an ORV. The Michigan DNR offers ORV safety education as an online or classroom-based course.
  6. RIDING WITHOUT A HELMET. Helmets help prevent serious head injuries. A U.S. Department of Transportation approved helmet is required when operating an ORV on any roadway, trail system or scramble area. Although there are some exceptions to when certain protective equipment is legally required, the Michigan DNR always recommends the use of proper safety gear.
  7. RIDING UNDER THE INFLUENCE. It is illegal to operate an ORV while under the influence of alcohol, drugs or any mind-altering substance, including prescription and over the counter medications.
  8. RIDING WITH MORE PEOPLE THAN THE ORV WAS MANUFACTURED FOR. Refer to manufacturer guidelines for the number of people your ORV can carry, and for safe and acceptable add-on modifications.
  9. RIDING ON THE WRONG SIDE OF A ROAD OR TRAIL. Just like driving a vehicle on the road, ride your ORV on the right-hand side of the road or trail. ORV paths are narrow. Riding in the middle, or on the wrong side, particularly when going around a corner, could cause a head-on collision with someone riding toward you. It’s important to stay on marked routes to avoid trespassing or hitting a rock, downed tree, barbed wire or other obstacles.
  10. TRESPASSING OR OPERATING IN A CLOSED AREA. Stay on designated ORV routes. Routes are marked for a reason, primarily to keep ORV operators safe. Erosion on hills and trails, destruction of stream banks and beds and conflicts with other users or non-users could lead to more restrictive riding rules or loss of trails. Do not make illegal hill climbs and avoid federal, state, county, local and private lands not designated open to ORV use.

Read more about ORV safety at Michigan.gov/RideRight. For more information about where to ride ORVs and ORV laws in Michigan, go to Michigan.gov/ORVInfo.

THE HOLMES YOUTHFUL TRAINEE ACT

The Holmes Youthful Trainee Act, commonly referred to as HYTA, provides individuals between the ages of 17 and 25* with a second chance. Under the act, an individual charged with a crime** may petition the court for “status” as a Youthful Trainee.

Stated plainly, if the court grants the individual status under the HYTA, he or she will be placed on probation. If he or she successfully completes the probationary term, the criminal conviction will not be entered onto his or her record. The court will dismiss all charges and his or her criminal record will remain clean.

There are extreme advantages related to HYTA. Having a criminal conviction on your record may cost you your job opportunities, education opportunities, and more.

If you would like to learn more about this subject, please contact Tripp, Tagg & Storrs, Attorneys at Law, call 269-948-2900 or 269-945-2242 or visit www.tts.law .

*In 2020 PA 396, the legislature amended the age range in the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq. As a result:

  • Until October 1, 2021: To be eligible for HYTA, a person must have committed an offense on or after their 17th birthday and before their 24th birthday. MCL 762.11(1).
  • After October 1, 2021: To be eligible for HYTA, a person must have committed an offense on or after their 18th birthday and before their 26th birthday. MCL 762.11(2). If the offense was committed when the person was 21 or older, the prosecutor must consent to the client’s HYTA status. The prosecutor must also consult with the victim if the person committed certain offenses. Id.

**Certain crimes, such as murder, kidnapping, imprisonment for life crimes, major controlled substance offenses, traffic offenses, and some sex crimes are not eligible for HYTA.

This blog is intended for informational purposes only and does not constitute legal advice. Please consult an attorney before making important decisions regarding your individual situation.

TRIPP AND TAGG STATEMENT ON CORONAVIRUS (COVID-19)

March 16, 2020 – At Tripp and Tagg, our top priority is the well-being of our employees and clients. We intend to stay open to serve our client’s needs while considering governmental guidelines and instituting policies and procedures related to COVID-19.

Tripp and Tagg will adapt to meet our client’s needs. Appointments by phone are available if clients are feeling ill or prefer to minimize interactions.

Our office will promptly contact any clients that may be affected by changes in court schedules. Informational releases from local courts are being closely monitored.

In this time of uncertainty, we strive to ensure that you can continue to count on Tripp and Tagg, Attorneys at Law, to meet all of your legal needs.

Modifying Parenting Time vs. Modifying Custody

Modifying Parenting Time vs. Modifying Custody

When meeting with clients, a common confusion arises regarding the difference between modifying parenting time and modifying custody. The difference can be very confusing and seem insignificant. However, it is important to know the subtleties between the two; the difference can have a great impact on your relationship with your child. The following is a rather detailed description the differences between the modifications. If you would like to discuss your current custody and/or parenting time arrangement, contact Tripp and Tagg, Attorneys at Law at 269-945-2242 or visit https://trippandtagg.com/ to email the attorneys.

ARE YOU ASKING TO MODIFY CUSTODY OR PARENTING TIME?

As a general rule, attempting to change custody is more difficult than attempting to modify parenting time.  But what is the difference between a change of custody and a change in parenting time? To answer the above question, one must first understand the concept of the “established custodial environment.” 

MCL 722.27(1)(C) states:

The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.  The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”

A change of custody is typically seen as a change in the custodial arrangement that alters the established custodial environment of the child. For example, if a change in the custodial arrangement is so significant that it would alter who the child looks to for guidance, discipline, the necessities of life, and parental comfort, then that change probably will be classified as a change in custody.  A change of parenting time can be seen as a change in the custody arrangement that does not have the effect of altering the established custodial environment.

A simplified (quite possibly too simplified) way of looking at the situation is to assume that if you are looking for a lot more time with your child then you might be asking for a change in custody.  But if you are asking for a little bit more time with your child, then you might be asking for a change in parenting time.

Again, the significance of this matter is that trying to modify parenting time is much easier than trying modifying custody.  Below the differing legal standards when dealing with modifying custody versus parenting time are explained.

WHAT MUST YOU SHOW TO GET THE COURT TO REVISIT THE CUSTODIAL ARRANGEMENT?

To deter parents from filing frivolous motions to modify custody every other week, before the court will even entertain a parent’s request to modify custody or parenting time, the parent must meet the initial threshold of showing the court that “proper cause or change of circumstances” exists to warrant re-review of the custodial arrangement. If a party cannot satisfy this burden, no review to modify may be conducted. Prior agreements or the judgment of divorce may also impact and establish the threshold.

INITIAL THRESHOLD TO MODIFY CUSTODY

When it comes to a potential change in custody, to establish a “change of circumstances,” the parent requesting the change must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, “which have or could have a significant effect on the child’s well-being,” have materially changed. 

“Proper cause” alone can also serve as a basis for modification. Proper cause means one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken and the grounds should be relevant to at least one of the twelve statutory best interest factors in MCL 722.23. 

INITIAL THRESHOLD TO MODIFY PARENTING TIME 

Parenting time changes have a lower threshold than custody changes.  For parenting time, a more expansive definition of Proper Cause or Change of Circumstances is necessary, because the objectives are different. The same normal life changes inadequate to warrant a custody change are exactly the types of considerations to consider when addressing a parenting time change.

While the primary concern with custody is the stability of the child’s environment and avoidance of unwarranted changes, the focus of parenting time is to foster a strong relationship between the child and its parents. When analyzing whether Proper Cause or Change of Circumstances to modify parenting time exists, the child’s age may be taken into consideration.  However, the parent trying to modify parenting time must show that there are “practical implications” to the child growing older that justify modification of the parenting time arrangement. A parent should be ready to show how the child’s needs are not sufficiently being met by the current parenting time arrangement. 

WHAT STANDARD IS THE COURT USING TO ANALYZE THE PROPOSED CHANGE?

If and only if a parent is able to show a finding of proper cause or change of circumstances, the court will revisit whether modifying custody or parenting time is appropriate.  The burden of proof to modify rests on the parent seeking to modify.  If a parent is trying to modify custody (i.e., alter the established custodial environment), that parent must show by “clear and convincing evidence” that modification is in the best interests of the child. Clear and convincing evidence is a high standard to meet.  If a parent is merely trying to modify parenting time, that parent must show by a “preponderance of the evidence” that modification is in the best interests of the child. The preponderance of the evidence standard is a lower standard to meet.

ANALYZING CUSTODY 

When analyzing a modification in custody, the Court is required to review the 12 best interest factors of MCL 722.23, listed as follows:

(a) The love, affection, and other emotional ties existing between the parties involved and the child. (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (e) The permanence, as a family unit, of the existing or proposed custodial home or homes. (f) The moral fitness of the parties involved. (g) The mental and physical health of the parties involved. (h) The home, school, and community record of the child. (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (l) Any other factor considered by the court to be relevant to a particular child custody dispute.

ANALYZING PARENTING TIME 

When analyzing a modification in parenting time, the Court is required to review the 12 best interest factors of MCL 722.23 AND the court also has the option of reviewing the 9 parenting time factors of MCL 722.27a, listed as follows:

(a) The existence of any special circumstances or needs of the child. (b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing.  (c) The reasonable likelihood of abuse or neglect of the child during parenting time. (d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time. (e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time. (f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order. (g) Whether a parent has frequently failed to exercise reasonable parenting time. (h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent. (i) Any other relevant factors.

If the matter is referred to a Friend of the Court custody investigator, the investigator is required to review the parenting time factors.

CONCLUSION 

In summary, when a parent desires to modify the custodial arrangement (i.e., increase his/her time with the child and/or decrease the other parent’s time with the child), the parent should understand the differences between changing custody versus changing parenting time.  As a general rule, changing custody is much more difficult to do than modifying parenting time.

If you would like to learn more about this subject, please contact Tripp and Tagg, Attorneys at Law, call 269-948-2900 or 269-945-2242 or visit https://trippandtagg.com/ .

*This blog is intended for informational purposes only and does not constitute legal advice. Please consult an attorney before making important decisions regarding your individual situation.