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. 

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.