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.
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.