Drugged Driving: Operating with the Presence of a Controlled Substance (OWPCS)

Drugged Driving

Lansing Michigan OWI Drugged Driving Attorney

Under the general DUI/OWI umbrella are categories of drugged driving. Not only can you be charged for operating a motor vehicle while under the influence of alcohol or driving with an unlawful blood alcohol content, but you can be charged for driving under the influence of controlled substances (cocaine, marijuana…) or prescription medicine. The standards are different in that the prosecutor does not have to prove an arbitrary amount of drugs in your system like the .08 BAC standard for OWI. Instead, the prosecutor only has to prove that you were operating a vehicle with any amount of a controlled substance.

Zero Tolerance: Driving with any Amount of a Controlled Substance

A person may not operator a vehicle on a public roadway if there is any amount of a Schedule I controlled substance under MCL 333.7212 or MCL 333.7214(a)(iv). This includes marijuana. It is a “zero tolerance” policy towards driving with any presence of a controlled substance regardless of whether it impacts your ability to drive. Even if it is a residual from a few days or even weeks prior (marijuana can stay in the system for up to a month) it doesn’t matter.

Schedule I Controlled Substances

Schedule I controlled substances include opiates, opium derivatives, hallucinogens, gammahydroxyutyic acid (GHB), ecstasy, and marijuana.

Michigan Medical Marijuana Card Patients

A licensed medical marijuana patient may drive as long as they are not “under the influence” of marijuana according to the Michigan Medical Marijuana Act (MMMA). The problem is the legislature didn’t clarify what they meant by “under the influence.” For example, Washington defined it in their DUI statute as having 10ng/THC per 100ml/blood. This created an apparent conflict with the OWI statute as it defines “under the influence” of marijuana as having any amount of marijuana in your system. The Michigan Supreme Court stepped into the role of the legislature and declared that the medical marijuana patients could drive as long as it does not substantially interfere with their ability to safely operate a car. That is what the prosecutor has to prove if a medical marijuana patient is charged with OWI or drugged driving.

Other Intoxicating Substances

On March 31, 2013 the statute was amended to include “other intoxicating substances.” That means any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance that is either of the following:

  • Recognized as a drug in any of the following publications or their supplements: official US pharmacopeia, official homeopathy pharmacopeia of US, official national formulary
  • Substance other than food, taken into a person’s body including but not limited to: vapors or fumes that are used in a manner or for a purpose for which it was not intended and that may result in a condition of intoxication

OWPCS is unique in OWI cases as it does not require proof of “under the influence”—a long-standing foundation of drunk driving law.

Penalties for OWPCS

The penalties for OWPCS are the same as the OWI penalties with the exception that the driver responsibility fees are lower. If convicted a defendant faces up to 93 days in jail $500 in fines plus court and police costs, one-year probation, six points on your driving record, 180 days suspended license (first 30 days a “hard suspension”—no driving, with restrictions for the remainder 150 days), and $1,000 in driver responsibility fees ($500/year for two consecutive years).

Michigan Drugged Driving Attorney

If you have been charged with drugged driving or OWPCS, you need the representation of an experienced OWI attorney who will thoroughly evaluate every aspect of the case including the initial police contact, blood draws, and administration of any field sobriety tests. If you have been charged with any DUI offense contact Austin Legal Services, PLC today to speak to a Michigan OWI attorney.

Representing OWI, drugged driving, and OWPCS charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Jackson, Livingston, Barry, Shiawassee, Genesee, in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Battle Creek, Jackson, Brighton, Howell, Hastings, Corunna, Durand, Flint.

Possession of Drug Paraphernalia

Drug Paraphernalia

Lansing Michigan Drug Paraphernalia Attorney

Under MCL 333.7451, drug paraphernalia is defined as any of the following or combination of any material, equipment, or product that is specifically used for: cultivating, growing, planting, compounding, processing, packaging, testing, storing, concealing, harvesting, analyzing, inhaling, injecting, ingesting, or otherwise introducing a controlled substance into the human body. Some examples of drug paraphernalia would include: marijuana pipes, drug scales (used for weighing), rolling papers, razor blades, mirrors, cocaine kit materials.

Actual Possession and Constructive Possession

The paraphernalia or equipment does not have to be directly on your person in order to be in “possession.” If you know where the paraphernalia is and have reasonable access to it or control over it, you can be held to be in “constructive possession.” For example, if you have drug scales or rolling papers in the console of your car, in a backpack in the back seat, or in the glove box—you would be in “constructive possession.” Constructive possession can occur anywhere including your car, home, or workplace.

Defenses to Drug Paraphernalia Charges

There are several legal defenses that can be used for drug paraphernalia charge. Here are some of the available defenses:

  • Lack of Knowledge—This can come into play in a couple of different ways since this is a specific intent crime. In order to be convicted, you have to know the paraphernalia is there and you have to intend to use it for a drug-related purpose. If you did not know the material was where it was found or if you knew it was there but intended to use it for a legitimate legal purpose (e.g. kitchen scales, rolling papers for cigarettes), that is a legitimate defense
  • Mere Presence—Someone is not guilty of the offense merely because they were in the vicinity or in company with someone who did possess drug paraphernalia. The prosecutor would still have to prove that you knew the materials were there and you had some kind of dominion and control over it.
  • Item Not Used for Drug-Related Purposes—An item only is considered paraphernalia if it is used for drug-related purposes. For instance, rolling paper would not be considered drug paraphernalia if it was used for rolling cigarettes.
  • Legally Valid Reasons for Possessing the Material—Certain qualified patients and caregivers may legally possess drug paraphernalia and use it in cultivating medical marijuana if they have the proper certifications and are using it and storing it as authorized under the law.

Fourth Amendment “Search and Seizure” Issues

There may be grounds to challenge the initial police contact (vehicle stop, Terry stop) or search. If the court finds there is a sufficient basis under the Fourth Amendment to challenge the stop or search, then the evidence can be suppressed and the case is dismissed. The police need “reasonable suspicion” to pull a car over. Anything from a minor traffic violation to barely crossing the center line will do. To search they need a warrant or a valid warrant exception, such as “plain view” or consent. For a Terry stop or brief patdown, the police need “reasonable suspicion” that you did engage, are currently engaging, or are about to engage in criminal activity. Only an experienced Michigan criminal defense attorney after thoroughly reviewing the police reports and video will be able to make that determination.

Penalties for Drug Paraphernalia

If convicted of possession of drug paraphernalia, you are guilty of a misdemeanor punishable by up to 90 days in jail and/or $5,000 in fines. If someone 18 years of age or older sells or offers to sale drug paraphernalia to someone less than 18 years old, is guilty of a misdemeanor punishable by up to one year in jail and/or $7,500 in fines.

Plea Options

If the evidence cannot be challenged or suppressed, the next step is to negotiate a favorable plea deal or prepare to take the case to trial. A skilled drug crimes defense attorney may be able to negotiate a delayed or deferred sentence that would keep the matter off your record or negotiate a civil infraction which does not appear as a criminal conviction. Unfortunately, 7411 is only available for drug use or drug possession charges so that is not an option.

Michigan Drug Crimes Defense Attorney

If you have been charged with possession of drug paraphernalia, it doesn’t have to ruin your future. We can help keep your record clean. Contact Austin Legal Services, PLC at (517) 614-1983 to speak to a Michigan drug paraphernalia lawyer today!

Defending possession of drug paraphernalia and other drug charges throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Clinton, Barry, Shiawassee, Calhoun, Kent in the cities of Lansing, East Lansing, St. Johns, Charlotte, Brighton, Howell, Jackson, Hastings, Durand, Corunna, Battle Creek, Grand Rapids.

Possession of Marijuana With Intent to Deliver

Possession with Intent to Deliver Marijuana

Lansing Michigan Marijuana Possession and Delivery Attorney

Possession of any type of drug, controlled substance or prescription pill with the intent to deliver it to someone else is a felony under Michigan law. The penalties vary depending on the schedule of the drug and how much of the drug the Defendant had. Possession of marijuana with intent to deliver is a felony. The penalties vary depending on the total weight of the marijuana or how many marijuana plants Defendant possessed. The maximum prison sentences range from four to 15 years.

What the Prosecutor Must Prove

  • Defendant knowingly possessed marijuana
  • Defendant created, manufactured, or had the intent to deliver the marijuana to someone else; and
  • Defendant was not in lawful possession of the marijuana or was acting outside the scope of his lawful duties as a licensee, applicant, or caregiver.

Penalties for Possession of Marijuana with Intent to Deliver

  • Less than 20 marijuana plants or five kilograms—up to four years in prison and/or fines up to $20,000
  • 20-199 marijuana plants or five to 45 kilograms—up to seven years in prison and/or fines up to $500,000
  • 200 marijuana plants or more or more than 45 kilograms—up to 15 years in prison and fines up to $1,000,000

Federal Government

Often in cases involving 100 marijuana plants or more than five pounds, the federal government will step in and take over. Federal sentencing for possession with intent to deliver is much harsher than the state level. For example, under federal law if you possess 120 or more marijuana plants, you face a mandatory four years in prison whereas at the state for the same offense, more than likely you would be facing county time depending on what your sentencing guidelines are.

Proving the Intent Element

If the prosecutor can’t prove you were creating or manufacturing the marijuana, then they must prove that you possessed it with the intent to deliver it to another person. Prosecutors often have to rely on circumstantial evidence to meet this burden. The focus is on the weight and the packaging among other factors. The prosecutor will need an expert to testify as to the habits of drug dealers and how much marijuana a normal user would usually possess. If the marijuana is packaged in multiple bags as opposed to just one, that can be circumstantial evidence of the intent to sell or deliver the marijuana. Also, evidence of drug scales can also be circumstantial evidence as drug dealers use them to distribute different amounts—something a casual user wouldn’t need. Defendant may need to present an expert to counter the prosecution’s expert. These cases can come down to a “battle of the experts.” It is not uncommon for police to take a simple possession case and escalate it into a felony simply based upon the amount of drugs the person was caught with.

7411 Deferred Sentencing

Deferred sentencing under MCL 333.7411 can only be given for marijuana use or marijuana possession. Anything above general drug use or drug possession, including maintaining a drug house, possession of drug paraphernalia, or possession with intent to deliver, is not eligible for 7411.

Defenses

  • Lack of Knowledge—Defendant must be aware that the marijuana was in his possession in order to be found guilty.
  • Lack of Intent—Defendant must have created or manufactured the marijuana, or intended to deliver the marijuana to someone else. Defendant is not guilty if he merely possessed it for himself.
  • Mere Presence—Simply because Defendant was at the scene where drug dealing or drug possession occurred, is not enough to convict him of the crime.
  • Fourth Amendment Violations-— There may be various constitutional issues that could lead to a suppression of the evidence or dismissal of the charges including: search and seizure violations, lack of probable cause or lack of consent for the police to search, lack of probable cause for a search warrant, chain of evidence custody defects, improper lab testing.

Michigan treats any drug offense seriously, but especially charges involving drug dealing. That is why it is important to have an experienced Michigan drug and marijuana possession attorney thoroughly review all police and lab reports for any deficiencies or legal errors that could be used to get the charges reduced or dismissed.

Michigan Possession with Intent to Deliver Defense Attorney

If you have been charged with creating, manufacturing, or possession of marijuana with the intent to deliver, call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan marijuana and drug possession attorney.

Defending drug possession with intent to deliver marijuana charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Jackson, Shiawassee, Washtenaw, Livingston, Barry, Kent, Gratiot and in the cities of Lansing, East Lansing, Mason, Okemos, Haslett, Bath, St. Johns, Charlotte, Jackson, Corunna, Ann Arbor, Grand Rapids, Brighton, Howell, Ithaca, Durand.

 

Possession of Controlled Substance With Intent to Deliver

Possession with Intent to Deliver

Lansing Michigan Drug Dealing Defense Attorney

In Michigan, possession of a controlled substance or a prescription drug without a prescription is a crime. The penalties vary depending on the type of drug, amount, location, and if the accused has any prior criminal drug history. If the police and prosecutor believe you possess these drugs with the intent to deliver them to someone else, the punishments are more severe. The penalties vary on the type of drug or drugs that were possessed (what schedule the drugs were) and how much you had (the weight of the drugs).

Under Michigan law (MCL 333.7403), controlled substances are listed in five categories called schedules. Schedule I and Schedule II substances are considered the most addictive, highly dangerous, and widely abused so the punishments are more severe.

What the Prosecutor Must Prove

  • Defendant knowingly possessed a controlled substance
  • Defendant created, manufactured, or had the intent to deliver the controlled substance to someone else; and
  • Defendant was not in lawful possession of the controlled substance or was acting outside the scope of his lawful duties

Penalties

Possession of a Schedule I or Schedule II Controlled Substance narcotic with Intent to Deliver

  • Less than 50 grams—20 years in prison and/or $25,000 in fines
  • 50-449 grams—20 years in prison and/or $250,000 in fines
  • 450-999 grams—30 years in prison and/or $500,000 in fines
  • 1,000 or more grams—Life in prison and/or $1,000,000 in fines

Consecutive Sentencing—Convictions under this section may run consecutively (after) any other sentences that Defendant is convicted of.

Possession of any other Schedule I, II, or III Controlled Substance (except marijuana) with Intent to Deliver

Possession of any amount of a Schedule III drug with intent to deliver is punishable by up to seven years in prison and/or $10,000 in fines.

Possession of a Schedule IV Controlled Substance with Intent to Deliver

Possession of any amount of a Schedule IV drug with intent to deliver is punishable by up to four years in prison and/or $2,000 in fines.

Possession of a Schedule V Controlled Substance with Intent to Deliver

Possession of any amount of a Schedule V drug with intent to deliver is punishable by up to two years in prison and/or $2,000 in fines.

Possession of Marijuana with Intent to Deliver

Possession of Marijuana with intent to deliver is based upon the total weight or number of plants. It ranges from four to 15 years in prison.

Possession of Prescription Pills or Counterfeit Prescription Pills With Intent to Deliver

Possession of any amount of prescription pills or counterfeit prescription pills with intent to deliver is punishable by up to seven years in prison and/or $5,000 in fines.

Proving the Intent Element

If the police don’t catch you red-handed distributing the drug to someone else, the prosecutor has to prove that you possessed the drugs with the intent to deliver them. They generally try to prove that with circumstantial evidence—the weight of the drugs (too much for a single user), the packaging of the drugs (multiple bags as opposed to one), and other factors. Often they need an expert witness to testify about drug dealers to the jury. You may need to have your own expert to counter the prosecution’s expert.

7411 Deferred Sentencing

Deferred sentencing under MCL 333.7411 only applies to drug use and drug possession charges. It does not apply to the more serious charges of drug dealing, possession of drug paraphernalia, or maintaining a drug house or drug car. Unless the prosecutor agrees to lower the charge to drug use or drug possession, you cannot get 7411.

Defenses

  • Lack of Knowledge—If Defendant was not aware the drugs were in his house, car, or other place the police found them, he cannot be guilty because the law requires that the Defendant knew the drugs were in his possession.
  • Lack of Intent—Defendant must have intended to deliver the drugs to someone else. If Defendant possessed the drug were his own personal use, he cannot be guilty. Often this comes down to circumstantial evidence and expert testimony.
  • Mere Presence—Simply because Defendant was at the scene was drug dealing or drug possession occurred, is not enough to convict him of the crime.
  • Fourth Amendment Violations-— There may be various search and seizure violations that could lead to a suppression of the evidence. This includes everything from challenging the police stop to challenging the search, challenging the search warrant, problems in the chain of custody of the evidence, or problems in the testing of the controlled substance. Only an expert criminal defense attorney will not how to spot problems in the police and lab reports that can lead to suppression and dismissal.

Michigan Possession with Intent to Deliver Defense Attorney

Drug dealing is a very serious crime with severe penalties. If you have been charged with creating, manufacturing, or possession of a controlled substance with the intent to deliver, call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan drug possession attorney.

Defending drug possession with intent to deliver charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Jackson, Shiawassee, Washtenaw, Livingston, Barry, Kent, Gratiot and in the cities of Lansing, East Lansing, Mason, Okemos, Haslett, Bath, St. Johns, Charlotte, Jackson, Corunna, Ann Arbor, Grand Rapids, Brighton, Howell, Ithaca, Durand.

 

Maintaining a Drug House or Drug Car

 

 Drug House Lansing Drug Crimes Attorney 

 

If you have been charged with a drug crime you could face additional and more severe charges if the drugs are associated with your home or vehicle. MCL 333.7405

 

What is a Drug House or Drug Vehicle

 

A drug house or drug car is defined as knowingly keeping or maintaining a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place that is frequented by persons using controlled substances for the purpose of using a controlled substance or for the purpose of keeping or selling a controlled substance.

 

In summary, it is a house, vehicle, or structure where drugs are used, stored, or sold.

 

Penalty

 

  • Up to two years in prison
  • $25,000 in fines

 

It is considered a high-court misdemeanor. A high-court misdemeanor is a serious misdemeanor that is handled at the circuit court or higher court and is procedurally treated like a felony.

 

Consecutive Sentencing

 

Upon conviction of multiple drug crimes, consecutive sentencing applies. That means you serve your first sentence before you start serving your sentence for maintaining the drug house. This applies to all serious controlled substance offenses beyond possession or use. For example, if convicted of Delivery & Manufacturing Marijuana and Maintaining a Drug House, you would have to serve one sentence completely before serving the sentence for the other crime. This is opposed to the more favorable concurrent sentencing where sentences for multiple convictions are served together at the same time.

 

Double Penalty

 

If you have a previous drug conviction, your penalty for the drug house or drug car charge will be doubled from a two-year high court misdemeanor to a four-year felony.

 

Summarizing What the Prosecutor Has to Prove

 

  • Defendant had knowledge of the drug house or car
  • Defendant did keep or maintain the drug house or car
  • The house or car was frequently used in violation of Michigan’s controlled substance laws

 

The prosecutor does not have to prove that you owned the house or car. For example, you would be guilty of this offense if you were storing or selling drugs from your hotel room or an abandoned barn.

 

Diversion Programs

 

Some drug charges are eligible for sentencing under MCL 333.7411 or 7411 for short. Upon successful completion of probation, you would not have a public record of the offense. Unfortunately, this is only available for first offenders of drug use or drug possession. However, if you are between the ages of 17 and 21, you would be eligible for sentencing under the Holmes Youthful Trainee Act (HYTA) which allows you to earn a non-public record. However, it is within the discretion of the judge to give it to you.

 

How We Approach Your Case

 

These types of cases of often glorified possession cases that are bolstered into something more serious based upon the amount of drugs or the packaging. If the police believe the amount of drugs you possess is more than what a typical user would possess or is packaged individually suggesting it was being sold or distributed, you may find yourself with the heightened charge of maintaining a drug house or drug car. Your admissions can be used against you as well.

 

As a criminal defense attorney, our first goal is to see if the evidence can be suppressed by challenging the stop of the vehicle or the initial police contact. If the police did not have reasonable suspicion to stop your vehicle or approach your house or lacked probable cause to search your car or house, your case can get dismissed. If it comes down to the weight and packaging of the drugs, you need an experienced Michigan drug crimes attorney to argue against it and perhaps even have an expert testify. If another occupant of your house or car is using it for selling or storing drugs without your knowledge, you would have a defense against the “knowing” element. If the charge cannot be dismissed, we may get it reduced to simple drug possession or drug use. In any event, this is a very serious charge and you need a strong advocate on your side.

 

If you have been charged with maintaining a drug house or drug car, call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan drug crimes attorney.

 

Defending clients on drug charges throughout Michigan in the counties of Ingham, Eaton, Jackson, Clinton, Barry, Shiawassee, Livingston, Lenawee, and Kent in the cities of Lansing, East Lansing, Mason, Holt, Jackson, St. Johns, Bath, Corunna, Grand Rapids, Howell, Brighton, Okemos, Delta Township, Charlotte, Hastings.

 

Possession of a Controlled Substance– Drug Possession

Controlled Substance Possession  Lansing Drug Possession Attorney

In Michigan, possession of a controlled substance or a prescription drug without a prescription is a crime. More commonly known as simple drug possession. The penalties vary depending on the type of drug, amount, location, and if the accused has any prior criminal drug history. As a Michigan drug possession attorney, my goal is to help you avoid jail, keep your record clean, and prevent the mandatory driver’s license suspension. Unfortunately, that is not possible in all cases.

Controlled substances are strictly regulated by the government. It includes possession of prescription painkillers, narcotics, heroin, cocaine, methadone, marijuana, and morphine. It also includes controlled substances that have legal uses, such as prescription drugs, which can get you charged with a crime if you don’t have a valid prescription for them. The most common examples are OxyContin, Vicodin, Xanax, and Valium. Even substances that contain codeine and Tylenol III are included on the list.

Under Michigan law (MCL 333.7403), controlled substances are listed in five categories called schedules. Schedule I and Schedule II substances are considered the most addictive, highly dangerous, and widely abused so the punishments are more severe. The War on Drugs is a very political issue for prosecutors and law enforcement. Often in their overzealousness defendants get overcharged or charged with additional and more serious crimes such as Possession with Intent to Deliver or Maintaining a Drug House.

 

Penalties

Possession of a Schedule I or Schedule II Controlled Substance

  • Less than 25 grams—four years in prison and/or $25,000 in fines
  • 25-49 grams—four years in prison and/or $25,000 in fines
  • 50-449 grams—20 years in prison and/or $250,000 in fines
  • 450-999 grams—30 years in prison and/or $500,000 in fines
  • 1,000 or more grams—Life in prison and/or $1,000,000 in fines

 

Possession of Ectasy

Possession of any amount of ectasy is punishable by up to 10 years in prison and/or $15,000 in fines

Possession of Analogues

Possession of Analogues or designer drugs are punishable by up to two years in prison and/or $2,000 in fines

Possession of LSD, Peyote, or any Schedule V Controlled Substance

Possession of any amount is punishable by up to one year in jail and/or $2,000 in fines

Possession of Marijuana

Possession of Marijuana is a misdemeanor punishable by up to one year in jail and/or $2,000 in fines

Plea Bargains

If it is your first offense, most prosecutors will probably offer a reduction in the charge as an incentive to avoid trial. Possession of a controlled substance can be pled down to Use of a Controlled Substance which reduces the severity of most possession cases from a felony to a one-year misdemeanor.  The exception is use of marijuana which decreases the penalty from one year to 93 days.

Mandatory Driver’s License Sanctions

If you are convicted of any drug possession or drug use charge under Michigan law, your license will be automatically suspended by the Secretary of State. This is true even if the particular drug offense that you were convicted of didn’t involve driving. It is mandatory and automatic under statute meaning that neither the judge nor prosecutor has the authority to negotiate a sentencing agreement around it.

7411 Deferred Sentencing

If you have no previous drug convictions, you will be eligible for a special sentencing status under MCL 333.7411 or 7411 for short. The way it works is that if you enter a guilty plea and the judge grants you 7411 status, the “conviction” will not appear on your public record as long as you successfully complete probation. Not only does it keep your public record clean, but it also prevents the mandatory driver’s license sanctions as well. If eligible, you are always free to petition the court for 7411, but it is up to the judge on whether or not to give it to you. One final caveat—you only get to use it once in a lifetime.

As you can see, Michigan treats drug crimes and possession of a controlled substance very seriously. That is why you need an experienced advocate in the courtroom. The police reports must be thoroughly scrutinized to first determine if the police had legal grounds to have contact with you and then if they had probable cause to search you or to arrest you. That is always the first step in fighting any drug charge. If the police did not have probable cause to search you or arrest you, the evidence will be suppressed and your case dismissed. There may also be issues with the chain of custody for the evidence or the testing of the substance. It is important to have someone experienced in defending drug possession charges representing you every step of the way. Our goal is to help you avoid jail and keep your driver’s license if at all possible.

If you have been charged with possession of a controlled substance, call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan drug possession attorney.

Defending drug possession and drug use charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Jackson, Shiawassee, Washtenaw, Livingston, Barry, Kent, Gratiot. Defending cocaine possession, marijuana possession, heroin possession in the cities of: Lansing, East Lansing, Mason, Okemos, Haslett, Bath, St. Johns, Charlotte, Jackson, Corunna, Ann Arbor, Grand Rapids, Brighton, Howell, Ithaca.

Controlled Substance Mid Michigan Controlled Substance Attorney

Michigan First Offense Marijuana Possession

Michigan Marijuana Lawyer

Lansing Marijuana Possession Attorney

First Offense Marijuana Possession

 

Possession of marijuana is a misdemeanor offense under both Michigan state law and local ordinance. It carries the possible penalties of jail, fines, court costs, probation and mandatory driver’s license suspension. The penalties for marijuana possession depends on the jurisdiction. If you have a Michigan Medical Marijuana Card you may have a defense to this crime. The Michigan Medical Marijuana Act is a lengthy discussion that will not be covered in this article.

 

Penalties for Marijuana Possession Under State Law:

 

  • Up to one year in jail
  • $2,000 in fines
  • 180 days suspended driver’s license with first 30 days “hard suspension” (no driving at all-period!)
  • Probation up to two years

 

Penalties for Marijuana Possession Under Local Ordinances

 

  • Up to 93 days in jail
  • $500 in fines
  • 180 days suspended driver’s license with first 30 days “hard suspension”
  • Probation up to one year

 

Some cities have de-criminalized possession for small amounts of marijuana on private property such as your home. It does not prevent you from being criminally charged if it is in your car. The cities of Detroit, Grand Rapids, and most recently Lansing, have decreased the penalty for small amounts of marijuana possession on private property to a civil infraction or ticket where you merely pay a fine. However, it remains a misdemeanor under both state and federal law.

 

Most charges of marijuana possession occur within the context of a traffic stop. The police pull you over for committing some traffic violation such as speeding and end up discovering the weed either in the car or on either the driver or passenger or the belongings of the driver or passenger. How does that happen? Usually one of three ways: plain view, permission, or admission.

 

If the police can see or smell the marijuana, this gives them probable cause to seize the dope and search the vehicle for more. This is what is known as the “plain view” (or “plain smell”) doctrine which is an exception to the warrant requirement for searches. If the police are somewhere where they are lawfully allowed to be and they either see the drugs in plain sight or smell the odor of the drugs, they can seize it as evidence and search for more anywhere it could reasonably be.

 

The other way is by admission or permission. Often the police will ask the driver and other passengers if they have anything illegal on them or in the car. Intimated and nervous, most will readily confess if they do not knowing that they do not have to answer such questions. The courts have held that most traffic stops are not considered “police custody’ which triggers Miranda Warnings. Instead, the courts have classified traffic stops as “brief detentions.” Therefore, the police do not have to provide you with Miranda Warnings before beginning an onslaught of incriminating questions. Remember: no one has to talk to the police. Ever. Always be polite, but invoke your right to silence by telling the officer “I choose not to answer any questions under the Fifth Amendment.” They cannot hold your silence against you or use that as suspicion to search your vehicle.

 

Police officers will often ask the driver for permission to search the car. Again, not realizing they can refuse and such refusal cannot be held against them, many people waive their Constitutional rights and give in to the officer’s request. Again, big mistake. Even if you have nothing to wide, the process of the police searching your car can not only be embarassing but it’s also time consuming and inconvenient. Do not give in to police scare tactics that they will make you wait until they come back with a warrant. Police never need a warrant to search a car. Due to the ready mobility of vehicles, it qualifies as an exigent circumstance which is an exception to the general warrant requirement for searches. All the police need is “probable cause.”

 

How do you know if the police have probable cause or not? Here’s a good rule of thumb to go by– if they are asking your permission they probably don’t have it. It’s been my experience from the vast hoards of dash cam footage I’ve witnessed and police reports I’ve read, if the police have probable cause they will be telling you they’re going to search your car, not asking. Sometimes the police have drug dogs with them and if the drug dog signals that drugs are in the car, that gives the police probable cause to search.

 

If only people were more educated about their rights and invoke them when the time comes, the vast majority of these cases would never be brought to court. That’s the honest truth.

 

My Approach to a Marijuana Possession Charge

 

The first thing I do is thoroughly review all the evidence including police reports, witness statements, dash cam footage, and lab reports. If the stop of the person or car can be successfully challenged, then any evidence obtained from those stops would be suppressed as “fruits of the poisonous tree.” The same goes for the search and seizure of the evidence. If there are any Fourth or Fifth Amendment violations, this can be used to suppress the evidence. If not, we move on the next phase: limiting the damage.

 

Even though jail is possible in the theoretical sense, it is extremely unlikely if not improbable. In all the cases of marijuana use and possession that I have represented clients on and of all the ones I have witnessed other attorneys represent clients on, and of all the ones I have heard of other attorneys representing clients on, I have never, ever seen or heard of a defendant go to jail on a first offense marijuana possession charge. I’m sure that it has probably happened to somebody somewhere. I’ve just never seen it or heard about it.

 

Realistic Outcomes and Sentences

 

Now that we have eliminated jail as a possibility, let’s discuss what the likely sentences are. Depending on which county you are in or what judge you are appearing infront of, you will either be placed on probation with fines and costs, or you will merely be assessed fines and costs. An attorney familiar with your particular court and judge will be able to tell you what to expect. If placed on probation, it generally lasts anywhere from three months to a year with six months being the average. Some courts will have you report regularly to your probation officer such as once a month, others will place you on non-reporting probation where you either report to your probation officer your first and last month of probation or not at all. It’s kind of like being on the honor system.

 

Driver’s License Suspension

 

Probably the worst consequence of marijuana possession (or any drug offense for that matter) is the mandatory driver’s license suspension. That is mandated by statute and neither the judge nor the prosecutor has any authority to barter around it. If convicted, your license will be suspended. The suspension is for 180 days or six months, with absolutely no driving at all during the first 30 days known as a hard suspension. The judge has the discretion to grant you restricted driving privileges after that 30 days meaning you can drive to work, school, court, and the doctor but that’s it. Also, while some judges will automatically grant you that upon sentencing (I always ask the judge to place it in order of judgment) some judges will make you come back after 30 days and formally petition the court for the restricted license. Being caught with marijuana is a much bigger deal than you think.

 

7411 Deferred Sentencing for First Time Drug Offenders

 

The good news is that if it is your first drug offense, you will qualify for a deferred sentence known as 7411 (short for the statute– MCL 333.7411). It is a one time deal that only applies to your first offense for either drug use or drug possession. Upon successful completion of probation, you will have earned a non-public record of the conviction. That means it will not appear on background checks and you can honestly tell future employers that you have not been convicted of a crime. It also prevents the mandatory driver’s license sanctions meaning you will not have a suspended license. If you are eligible, I always bargain with the prosecutor to get them to agree not to object to our motion for 7411. While it is always within the discretion of the judge, it you are otherwise eligible and the prosecution does not object, the judge will more than likely grant the petition unless for some reason you are not a good probation candidate.

 

Simple marijuana possession has harsher penalties and consequences than most people realize. If it is your first offense and it can’t be dismissed, I can help you keep it off your record and help you keep your driver’s license. A drug charge does not have to ruin your future. If you have been charged with marijuana possession, call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan marijuana attorney.

 

Representing clients on marijuana possession and use charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Barry, Jackson, Livingston, Washtenaw, Kent, Gratiot in the cities of: Lansing, East Lansing, Mason, Okemos, Haslett, Meridan Township, Holt, Charlotte, Potterville, Hastings, St. Johns, Bath, Jackson, Brighton, Howell, Ann Arbor, Grand Rapids, Ithaca, Alma. 

Possession of Analogues

Lansing Michigan Drug Possession Lawyer

Analogues

 

Analogues, also known as “designer drugs,” are substances with a similar chemical structure to a Schedule I or Schedule II controlled substance (heroin, cocaine, marijuana). The federal Drug Enforcement Agency (DEA) has been given the authority to immediately issue a ruling for certain analogues to become illegal. These laws were created in response to state and federal laws that only regulated illicit drugs. Drug users wanted the same sensation that the prohibited controlled substances provided, but without the fear of prosecution. Users quickly found out that they could use designer drugs (analogues) which were similar enough in their chemical compound to give them a faux sensation. It was a way to have the fun without the fear of going to jail. That is, until the legislatures became aware of this attempt to out maneuver the system and passed laws against the designer drugs as well. The most common examples of analogues that defendants get charged with are Vicodin and Oxycontin.

 

Most people have never even heard the term until they find themselves being charged. Also, many do not realize that analogues can be just as strong and even stronger than the illicit drugs they imitate. The common scenario on how someone gets charged with this offense is when they have been given somebody else’s lawfully prescribed pain medication to help them deal with their back pain or whatever. Even if that is true, it is still no legal defense to being in possession of these pills that they were not prescribed. Similar crimes involve obtaining medicine without a prescription or prescription fraud. Desperate individuals will write fake prescriptions on fake prescription pads or phony “call ins” in an attempt to unlawfully obtain prescription medicine.

 

Penalties:

 

Possession of Analogues– Punishable by up to two years in prison and $2,000 in fines.

 

Use of Analogues– punishable by up to one year in jail with $1,000 in fines.

 

Creation, Manufacturing, or Delivery (Possession with Intent to Deliver)– punishable by up to 15 years in prison and $250,000 in fines.

 

Mandatory Driver’s License Suspension

 

Also, keep in mind that all drug convictions in Michigan (even marijuana possession) have mandatory driver’s license suspensions meaning that upon conviction, you will automatically lose your driver’s license for a period of time. That is mandatory by statute and the judge has no discretion to sentence around it.

 

Enhanced Sentences

 

There are enhanced sentences for each subsequent offense as well as for delivering to a minor or delivering within a certain distance of a school, house, bus, park, or church.

 

How I Approach a Possession of Analogues Case

 

As a Michigan drug crimes lawyer, my approach to analogues or drug charge is to first review the police report to see if there are any grounds to challenge the stop of either the vehicle or person. The initial contact with the defendant is crucial because the police must have certain criteria for initiating contact with someone. This is very fact specific and depends heavily on the “totality of the circumstances” surrounding the encounter. It also determines what legal rules and Constitutional standards apply. The next order of business is to scrutinize the search or the discovery of the drugs. In order to perform a search on a person, vehicle, or home, the police need either a search warrant or a valid exception to the search warrant requirement. There may be chain of custody issues or problems with the lab analysis as well. This is always the first place to start when deciding on whether they are valid search and seizure issues that can be raised to either get the case dismissed or to be used as leverage in plea negotiations with the prosecutor to get the charges reduced or a better deal than what is being offered. It will also help us decide whether the preliminary examination needs to be run or waived.

 

If the case is solid or cannot be dismissed, then the next phase is what I call mitigating the damage. As I tell my clients, usually we can’t just outright prevent any bad things from happening, but we can contain the damage or minimize the pain. That is accomplished by successful plea negotiations which can render a reduction in charges, a sentencing agreement which limits or eliminates jail, or reduces the charge so the defendant is eligible for a deferred sentencing option such as 7411 which not helps him earn a non-public record, but prevents the mandatory driver’s license sanctions.

 

As you can see, possession of analogues or any controlled substance case, is very complex with a lot of variables that factor into it. Prosecutors treat these cases very seriously and often will not be willing to offer good plea deals, especially for repeat or habitual offenders. That is why you need an experienced Michigan drug lawyer representing you. Contact Austin Legal Services, PLC today to speak to a Michigan drug crimes lawyer at (517) 614-1983.

 

Defending drug crimes throughout Michigan in the counties of: Ingham, Eaton, Clinton, Jackson, Barry, Shiawassee, Washtenaw, Livingston, Kent in the cities of: Lansing, East Lansing, Charlotte, Jackson, St. Johns, Bath, Haslett, Mason, Okemos, Ann Arbor, Grand Rapids

 

SCOTUS Holds Law Requring DNA Samples Upon Arrest Constitutional

0_0_0_0_250_187_csupload_58638701A couple of weeks ago in what Justice Alito called the “most important criminal procedure case that this Court has heard in decades,” the US Supreme Court held that a law requiring anyone arrested for a serious felony to submit to a DNA sample is not an unreasonable search under the Fourth Amendment.[1] This holding has sparked intense debate between those who believe such information is valuable and necessary in resolving unsolved crimes, while others see it as an impermissible intrusion of our person and civil liberties that is a precursor for further eroding of our Constitutional safeguards. So who is right? First, a little
background.
Alonzo Jay King was arrested in 2009 on a felony assault charge. Under the Maryland DNA Collection Act, he was forced to to submit to a cheek swab to obtain his DNA. This law, which is similar to what 25 other states have, takes the DNA samples and places them into CODIS (the Combined DNA Index System), a federal data base that law enforcement uses to link DNA samples to unsolved crimes. King ended up pleading guilty to a reduced misdemeanor. The authorities used his DNA to trace him to an unsolved rape case from 2003. His defense attorneys moved to suppress the DNA results but the trial court denied the motion and his conviction was appealed. The Maryland Court of Appeals overturned the conviction holding that police needed a warrant or at least a reason to suspect him of another crime before getting a DNA sample. That’s how the matter got before the nation’s highest court.
Justice Kennedy, writing for the narrow 5-4 majority, believes that DNA samples are akin to fingerprints (unique personal identifying marks) and a faster, more accurate, and less intrusive process. After all, if it helps solve crimes and take violent offenders off the streets, isn’t it worth it even if it may run a little afoul of the Fourth Amendment? Would the Founding Fathers who drafted the Bill of Rights approve of the ‘fingerprinting of the 21 Century?” I believe the answer to both questions is no.
The problem I have with the supporters of this ruling is that they are looking at it the wrong way. It doesn’t matter how many crimes this may help solve or how many bad people it takes off the street and puts behind bars. The question is is it Constitutional? If it isn’t, then no amount of positive results it may bring will justify it. After all, we could get criminals off the street merely by having the police do house checks (like they do in Japan). The police would be coming across any number of drug houses, meth labs, domestic assaults, wanted felons, and maybe even some missing children or the occasional kidnap victim. We don’t do these things because we have a Constitution that says otherwise. We need the Bill of Rights in order to keep the government in check and from running amuck abusing their power. The ends do not justify the means.
 
The other problem that I have with the case is that it didn’t draw any distinction nor set any boundaries. Is this rule of law limited to forced DNA sampling for only violent offenders, or can states pass laws requiring it for anyone arrested for any felony, or worse yet any crime? Where does it all end? The Court didn’t tell us. Perhaps over the next few years when more states add more intrusive DNA legislation we’ll get our answer. Justice Scalia in dissent with the liberal wing of the Court, called this a “suspicionless search.”
The majority erroneously analogized collecting DNA samples to a search incident to arrest and identification. Search Incidents to Arrest are for the safety of the police and jail population, i.e. to make sure that the arrestee doesn’t have any weapons or dangerous items that he may be bringing into the jail (and to protect police from claims of lost or damaged property). The identification claim is also bogus in that not only did they have sufficient information as to who King was, but the DNA sample was not completed until after his arraignment (three days after his arrest) and by the time the DNA sample was taken, collected, sent off for lab analysis and returned, several months had passed. Clearly they were searching King for evidence of a crime that a) was unknown at the time, and b) they did not have probable cause to believe he committed it. The ruling flies in the face of the very safeguards that the Fourth Amendment provides. Yes, it will aid in the solving of crimes, but it will also result in the government becoming more powerful and more intrusive which means we all lose more privacy. For these reasons the Court’s decision is wrong. The ends do not justify the means.
This is troubling as it is surprising since the Court had seemingly been swinging in the direction of protecting against unreasonable search and seizures the last couple of years.[2] Currently, the Michigan legislature has bills pending that would require anyone arrested for a felony to submit to DNA testing for the purposes of identification.[3]
What say you?

 

[1]    Maryland v King, 133 S Ct 1958 (2013)[2]    In US v Jones, 132 S Ct 945 (2012), the Court held that the police using a GPS device on a car to track a suspect was un-Constitutional. InFlorida v Jardines, 133 S Ct 1409 (2013), the Court held that if the police, without a warrant, bring a drug dog to your house that is a trespass. [3]    2013 MI SB 105, 106, and 107.

Michigan 7411 Delayed Sentence for 1st Offense Drug Crimes

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Lansing Michigan Marijuana Drug Crimes Lawyer 

 

MICHIGAN 7411

While many believe that a first offense marijuana possession results in a slap on the wrist, i.e. fines, probation, minor misdemeanor on your record, nothing could be further from the truth. There is one punishment that is overlooked or unknown– the mandatory driver’s license suspension. That’s right– you get busted with pot, or any other controlled substance, you lose your driver’s license and there’s no getting around it. For how long depends on the offense. First offense: your license is suspended for six months Second offenses: the suspension is for one year. With this harshest of penalties the legislators did decide to give a ray of light to those convicted, albeit a small one. The judge may grant you a restricted license (only drive to school, work, medical appointments, court-mandated activities) after 30 days for a first offense and after 60 days for a second offense. Notice the word may is used and not shall. That’s right, the judge doesn’t have to grant you a restricted license, although they often do.

When sentenced, some judges will even entertain your petition to have it placed into the sentencing order that you will automatically receive a restricted license after the appropriate waiting period. However, there are many judges who will make you come back and file a motion or petition for a restricted license. When it comes to drug convictions Michigan doesn’t mess around. Apparently the legislators thought that it wasn’t enough to be placed on probation and all the requirements that goes along with it, so to add a heightened inventive they decided to take your license away. The problem is that not very many people realize this until it’s too late.

Many clients ask if there is away to avoid losing their driving privileges over such a conviction as it is extremely difficult or near impossible for many people to lose their license, even if it’s only for a month or two. The problem is that it is a mandatory part of the statute that neither the judge or prosecutor can do anything about in terms of pleas or bartering. However, there is one option where this blow can be avoided but there’s a catch: it can only be used once.

Michigan has a delayed sentence option for drug use and possession crimes under MCL 333.7411 or 7411 for short. It allows those who have never been convicted of either use or possession of a controlled substance, such as marijuana, cocaine, heroin, or second time offenders of an imitation controlled substance to plead guilty under 7411. It is only for use and possession charges and not for serious drug charges such as drug dealing, manufacturing, or maintaining a drug house. You enter a plea of guilty and the judge sentences you to probation which could include random drug and alcohol testing and completing drug classes. If you successfully complete all the requirements the judge sentences you to, then no judgment of guilt will appear on your public record. More importantly, since the judgment of guilt is never entered, the Secretary of State doesn’t impose any driver’s license sanctions either. It’s important that you meet the requirements in a timely fashion or else you run the risk of having the judge revoke your 7411 status which means it will not only appear on your public record, but you will lose your driver’s license. Remember: 7411 is a one time deal whether you succeed or not. There are no second opportunities so make sure you don’t lose it.

Even if you believe the case against you is weak, 7411 is just to good of a deal to pass up. It’s just not worth the risk of having a criminal record and losing your driver’s license when you don’t have to. If you are facing a drug possession or use charge, ask your lawyer about 7411 and he will be able to tell you if you’re eligible and can petition the judge if you are eligible.

 

Frequently Asked Questions

Do you have to plead guilty to get 7411 or can you still ask the judge for 7411 after you’ve been found guilty at trial? The statute says that you are eligible if you plead guilty or are found guilty which means after you lose at trial. So technically, yes you can petition the judge after trial for 7411 but it is likely the prosecutor will object and the judge is probably less inclined to give it to you especially since they are not required to in the first place. It’s always best to get 7411 as part of a sentence agreement.

Can I still get 7411 if the prosecutor objects? Yes, you can although it may be more difficult. Some judges can be persuaded and have been persuaded to give 7411 over the prosecutor’s objection, but it’s always best to get the prosecutor to agree not to object or to take no position.

Will I lose 7411 for a first time probation violation? It depends on the judge and the nature of the violation. Certain violations are more serious then others and certain judges are more tolerant than others. It has been my experience that 7411 is rarely revoked for a first time violation but why take the chance? Your best bet is to not have any so it won’t ever be an issue.

In summary…

Who is Eligible:

First time offenders of use or possession of a controlled substance
Second time offenders of use or possession of an imitation controlled substance

Who is Not Eligible:

Multiple offenders of use or possession of a controlled substance
If you have already been given 7411 for a previous conviction
Serious drug charges beyond use or possession– dealing drugs, manufacturing drugs, maintaining a drug house

 

If you have been charged with controlled substance possession or use such as use of cocaine, use of marijuana, possession of cocaine, possession of marijuana, or use or possession of heroin, contact your Michigan Drug Crimes Lawyer today at (517) 614-1983. We can help you keep it off your record.

 

Representing Drug Crimes Clients throughout Michigan in the counties of: Ingham, Eaton, Jackson, Livingston, Shiawassee, Kent, Clinton, Barry, and Gratiot and in the cities of: Lansing, East Lansing, Mason, St. Johns, Bath, Ithaca, Charlotte, Jackson, Brighton, Howell, Corunna, Grand Rapids.