Possession and Delivery of Marijuana in Michigan - Part 1

October 23, 2009

As part of my Practice as a Criminal Defense Lawyer in Michigan, I encounter Marijuana Cases on a weekly basis, in the local Detroit-area Courts of Macomb, Oakland and Wayne Counties. Despite a recent change in Michigan Law permitting the use of what's known as "Medical Marijuana," all the cases that I see involve the Possession (or Delivery) of what can only be described as "Recreational Marijuana," or Marijuana that not is bought, sold, or possessed for any prescribed medical reason.

A proper examination of this subject cannot be done quickly. Because of that, we'll divide this article into 2 parts. In this first part, we'll look at simple Possession of Marijuana Charges, and how they can often be completely kept off of a person's Record. We'll also touch on the Charges of Possession with Intent to Deliver, and Delivery and Manufacture of Marijuana. In Part 2, we'll examine those situations where a person Charged with a Marijuana Crime has a prior Drug Charge on their record, or is under 21 years of age. Then we'll look at what happens to those who have been Charged with the more serious Offenses of Possession with Intent to Deliver, or Delivery and Manufacture of Marijuana.

marijuana-herb.jpgThe whole subject of Michigan Medical Marijuana is both complex and not yet completely settled. Because this Blog deals with the Possession of Marijuana that is NOT allowed by the Medical Marijuana Law, we won't waste any time trying to untangle that complex subject. From my point of view as a Criminal Attorney, if someone has been arrested for a Marijuana Crime and that person has been approved for Medical Marijuana, then I'd use that Certification to get the charge dismissed. It is important to keep in mind that even if a person would qualify for Medical Marijuana, but didn't have such certification at the time of their arrest, going out after the fact and getting that certification would not have an effect on any charge brought before it was issued.

Okay, so to be clear, we're talking about Marijuana charges brought against someone who did not have any Medical Marijuana Certification at the time of their Arrest or Citation (Ticketing). My experience is essentially limited to Macomb, Oakland and Wayne Counties. The Majority of Marijuana Charges that are brought involve simple Possession. While not nearly as common, other charges I frequently handle involve either Delivery and Manufacture, or Possession with Intent to Deliver (often called a "P-WID").

The Crime of Possession of Marijuana can be brought under State Law, or a corresponding Local Ordinance. This simply means that if a person is Arrested or Cited by the State Police, or if they are Arrested or Cited in a Municipality that, for some reason, does not have it's own Marijuana Ordinance (and there are very few that do not), they will be "written up" under the State Law that makes Possession of Marijuana a Misdemeanor punishable by up to 1 year in Jail (don't worry, even seeing one day of that is extremely unlikely), a fine of up to $1000, plus a 6 month suspension of the Driver's License. All Local Ordinances are punishable by up to 93 days in Jail (same thing; any Jail time is highly unlikely), a fine of up to $500, with the same 6 month suspension of the Driver's License.

There is no minimum amount of Marijuana necessary to bring a Possession Charge. This means that even a trace amount, if it's enough to test positive, is enough to bring the charge. On the other hand, there is no set minimum amount necessary to bring the Charge of Possession with Intent to Deliver. For example, having two or three small amounts separately packaged can cause a Prosecutor to charge a person with the intent to deliver, or share, that Marijuana. I've seen this happen when a person is carrying two different kinds or qualities of Marijuana, and had absolutely no intent to distribute or deliver any of it. I can only imagine that this situation is the same for a drinker who keeps more than one kind of Scotch in his or her bar: The "everyday" quality for day-to-day consumption, and then a "higher-end" variety for special occasions. For all of that, Scotch is legal, and Marijuana is not. Of course, the more packages a person is found with, the worse things get.

The same thing holds true for the quantity of Marijuana. The larger the amount of Marijuana a person is found with, the more likely it is that a Possession with Intent to Deliver Charge will be made against them. I've seen cases where an ounce has resulted in the Possession with Intent to Deliver Charge. On the flip side, earlier this week, I handled a case in Warren where my Client was found in Possession of 1 ounce of Marijuana and was only charged with simple Possession. I was able to work things out so that the whole thing will be completely kept off of his Record.

Just because the more serious Possession with Intent to Deliver Charge is brought does not mean that it can't be reduced to and handled as a mere Possession. We'll discuss how a simple Possession Charge can be kept off of a person's record later in this article.

Delivery Charges are usually pretty straightforward. Often, a person sells some Marijuana to someone who later turns out to be an undercover Police Officer. In other cases, the Police discover a Marijuana plant or plants. Curiously, while the law prohibits the "Delivery or Manufacture" of Marijuana, "Delivery" requires an actual Delivery to someone. However, even growing 1 small plant for personal use (or decorative purposes) constitutes "Manufacture" and is therefore enough to result in this Felony Charge.

If a person finds him or herself charged with Possession (or what we've sometimes been calling simple Possession) of Marijuana, and that person has no prior Drug Crimes on their Record, there is a special provision of the law, commonly called a "7411," (meaning Michigan Compiled Laws, or MCL 333.7411) which allows their Lawyer to work out a deal which will prevent the whole thing from ever going on their record. Beyond the sheer joy of avoiding any kind of Criminal Conviction, a person who gets a "7411" avoids all the legal penalties that go with it, including (and especially) the Driver's License suspension.

7411 is a discretionary remedy, meaning that it's a deal which only the Judge can grant or deny. In practice, a Defense Lawyer will try to get the Prosecutor to agree to 7411, because that can only help the deal go through with the Judge. However, even if the Prosecutor does not go along, or outright objects to the deal, if the Defense Lawyer can get the Judge to agree, then the Prosecutor's position does not matter and the 7411 deal goes through anyway.

To put a 7411 in place, the Defendant (the person charged with the Crime) must offer a Plea of "Guilty" to the Possession charge. The Judge, in essence, aggrees to keep the whole thing in his or her desk drawer for a specified period of time (usually about 1 year). The person will be placed on some kind of Probation (usually reporting, sometimes non-reporting), and may be ordered to do any number of things (like periodically submit to urine testing) and to not other things (like pick up any new charges or test positive for drugs while on Probation). If, at the end of the Probationary period, the person has done what they were supposed to do, and has not done anything they weren't supposed to do, the Court will dismiss the whole case and there will be no Public Record of it ever happening. In the meantime, because the Defendant was never actually "convicted" of the offense, the Secretary of State will not have been notified and therefore no License Suspension will have been imposed.

This deal is great for anyone who is afraid of having such a charge on their Record and how it can negatively affect their employment prospects.

If, however, a person does screw up while on Probation, the Court can simply "yank" or revoke their 7411 status, and the whole thing winds up on their Record. Of Course, the Judge can also send the person to Jail, as well. The technical term for "screwing up" while on Probation is called a "Probation Violatation." Once that happens, the Secretary of State is notified and the Driver's License will be suspended for 6 months. The Driver can, if the Court will allow, obtain a Restricted License for 5 months after serving the first 30 days under a "Hard Suspension," meaning no driving at all.