Diversion Programs and Delayed Sentences

Diversion Program

Lansing Michigan Criminal Defense Attorney

When convicted of a crime, it will remain on your record forever. Usually. The good news is that not everyone has to worry about having their career or future ruined because of one bad choice or an error in judgment. The Michigan legislature has recognized that some people deserve a second chance and shouldn’t have their clean slate tarnished for every future employer to see. There are some ways you can keep a criminal conviction off your record. Some only apply to certain ages or certain offenses. These are known as diversion programs and deferred or delayed sentencing.

Diversion Programs

Diversion programs are a way for defendants to keep a criminal matter off their public record without having to plead guilty or go to trial. They are usually for low level offenses such as misdemeanors and non-violent felonies. Each court has its own criteria for diversion. There will be limits as to the types of offenses that are permitted and there may be residency requirements. The programs are usually reserved for first-time offenders. It is not an expungement, which is removing a conviction from your record after it has been on your record for a period of time. Diversion programs and delayed sentencings are better than expungements because if successful, the file is suppressed (non-public) from the beginning.

The way it works is that the prosecutor will dismiss your case without prejudice (meaning it can be re-filed) upon the contingency that you successfully complete the diversion program. Again, each court is different but it usually involves classes, fines, and community service. The length of the diversion and the types of class you participate in are determined by the type of offense. If you successfully complete diversion, the prosecutor will not re-file the charges and the matter will not appear on your public record. Diversion is frequently used for shoplifting or retail fraud, theft offenses, and sometimes non-violent felonies. An experienced Michigan criminal defense attorney that is familiar with your court should be able to tell you if you are eligible for diversion and can help you get in.

Holmes Youthful Trainee Act (HYTA)

The Youthful Trainee Act (HYTA or YTA) is a special sentencing option available to defendants who commit crimes between the ages of 17 and 24. The age requirements are strict. If you commit a crime at 12:01 a.m. on your 24th birthday, you are not eligible. Not every offense is eligible for HYTA either. Youthful Trainee Status cannot be given for any offense that has a potential life sentence (murder, armed robbery), criminal sexual conduct, a major controlled substance offense (drug dealing or possession with intent to deliver), or a traffic offense (OWI, Reckless Driving). Also, if the offense occurs between the ages of 21 and 24 the prosecutor must agree to HYTA or else the judge has no authority to grant it. Upon successful completion of your sentence, you will not have a public record of the offense. You must plead guilty in order to get HYTA, meaning you cannot receive it by pleading no contest or by being found guilty at trial. You can receive it more than once, but be wary that many judges are reluctant to give it multiple times.

7411 for First Offense Use or Possession of Controlled Substance

Under MCL 333.7411, you can receive a deferred conviction for possession of a controlled substance or use of a controlled substance. In other words, it only applies to drug use or drug possession. It cannot be given for any other controlled substance offense such as maintaining a drug house, possession with intent to deliver, etc. There is no age requirement but the caveat is it can only be granted once in your lifetime. Like HYTA, upon successful completion of your sentence (usually probation) you will not have a public record of the offense. Not only does it keep your record clean, but it prevents the mandatory driver’s license sanctions as well. You maintain a clean slate and keep your license. Unlike HYTA, you do not necessarily have to plead guilty to get 7411. You can request it if you have been found guilty at trial. However, be aware that many judges are hesitant to do so, especially if the prosecutor was agreeing not to object to your 7411 petition as an enticement for pleading guilty. It’s a risk you take.

769.4a for Domestic Violence Charges

Under MCL 769.4a, you can receive a deferred sentence for a domestic violence conviction provided that you have no prior assault convictions. Probation is the usual sentence but there could be some jail. Often you will have to take some sort of anger management classes or alcohol or drug treatment if they believe that is a problem. Like HYTA and 7411, you will have no public record of the offense if you successfully complete your sentence. Like 7411, you only get to use it once.

Minor in Possession of Alcohol (MIP)

For first offense MIP charges, a defendant can be granted a deferred sentence under statute, meaning he will not have a public record upon successful completion of probation which could include community service, alcohol prevention programs, and an alcohol substance abuse assessment. It can only be granted once.

Delayed Sentence

If you are eligible and the prosecutor and judge both agree, the sentence on your conviction may be delayed up to a year. In the meantime, you will be placed on probation under standard bond or probation conditions. After the year is up, you come back to court and your conviction can either be reduced to a lesser charge (misdemeanor or civil infraction) or in some cases completely dismissed, depending on what your agreement was. It is also commonly used in failure to pay child support cases.

Again, this is usually for first time offenders who are given on opportunity to show the court they are not likely to reoffend or commit crimes. You cannot get a delayed sentence for murder, treason, criminal sexual conduct in the first or third degrees, a major controlled substance offense, or armed robbery.

Michigan Sentencing Attorney

If you are charged with a crime, there may be options available to you that could keep your record clean. That means you can honestly tell future employers, colleges, and landlords that you have not been convicted of a crime. Michigan even has a law preventing employers from asking potential employees about misdemeanor convictions that have been diverted or deferred. This is something to discuss with your Michigan criminal defense lawyer if you find yourself being accused of a crime. A bad decision does not have to place an eternal scar on your record. If facing criminal charges, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan criminal defense attorney!

 

Defending criminal charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Shiawassee, Livingston, Kent, Washtenaw, Barry in the cities of Lansing, East Lansing, Mason, Brighton, Howell, Jackson, St. Johns, Ithaca, Grand Rapids, Ann Arbor, Hastings, Corunna, 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.

 

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.