Recently in Drug Crimes Category

January 27, 2014

Michigan Drug Crimes - Drug Charges in Macomb, Oakland And Wayne Counites

As a Michigan criminal defense lawyer with over 2 decades of experience handling cases involving drug possession charges, I have seen and wrestled with and resolved every facet that one of these cases can brings your life. This article will be a short examination of what it means to face a Michigan drug charge," and what can be done about it. The goal of hiring a lawyer in the first place is to make things better, so we'll see how that can be done, and how, in some cases, the entire charge can be made to "go away" and never show up on your record.

There really is no "typical" drug case. Even so, chances are, if you're reading this, a few relevant conclusions can be drawn about you: First, unless you're hopelessly bored and have otherwise read all the other books and articles in the world, either you, or someone you care about is contending with a drug charge right now. Second, if you've read this far, you are more interested in an intelligent discussion of this topic than a few short lawyer-centered statements like "tough," "aggressive," "experienced," or "call now!" This means that, whatever else, you, or whoever the person for whom you're doing this, has a life that matters. Given the level of my representation, none of my clients are "hard cases" that have squandered everything and everyone from their lives over a decades-long drug addiction.

DRUG+ARREST 1.2.jpgAccordingly, I get a lot of "pill" cases, or cases involving someone with a good job having been caught with a little coke (not crack) or some marijuana. Often enough, I am contacted by a parent for a son or daughter whose association with the wrong crowd has led him or her to make some bad decisions, ending up with a drug charge. This is where the parents step in to protect their child's future rather than let him or her be handicapped with a drug conviction on his or her record before ever really venturing into the job market.

And if there is no "typical" drug case, there are certainly a few "typical" concerns that people of solid social status have when confronted with a drug charge. As I hinted at earlier, in my reference to "hard cases," the career drug addict locked up again, for the umpteenth time has no concerns about his or her record. Usually, his or her only concern is when they can be released so they can get back to using. People with good jobs or educations, however, can suddenly be confronted with a host of considerations they never figured they'd have, and principal amongst them is having a drug conviction on their permanent record.

This is really an important issue. We can skip the "you should have though about that" lessons for now; if you have a good job, or an education that can get you a good job, having a drug conviction on your record can make things difficult, or even impossible. A drug conviction can have a real life negative impact on your future. We need to work things out to avoid that, at all costs. That does NOT mean, however, that you should be taken to the cleaners for legal fees.

I list my prices right on my website. While I am quick to caution anyone about thinking you're going to get top-level service from some cut-rate legal operation, I also think it is important to bear in mind that handling a drug case is, in the vast majority of cases, far from a complex legal problem. In fact, if handling a drug case isn't routine for your lawyer, then it's safe to say you got the wrong lawyer. My fees fall right about in the middle range, which is exactly where they should be.

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August 23, 2013

Michigan Criminal and DUI Charges - will Anyone find out About me Being Arrested?

It costs a lot of money to advertise and a lot of time to become well known as a Michigan criminal lawyer, or a Macomb DUI lawyer, or even a Michigan driver's license restoration attorney. In fact, to become "known" through advertising, in any of these capacities, at least by the general public, would cost a fortune. As a result, when a case comes along and a lawyer is contacted by the media about his or her client, the opportunity for what amounts to hundreds of thousands of dollars of "free" publicity presents itself. Without thinking, many lawyers will jump at the chance, often with a vague recollection of the notion that "there's no such thing as bad publicity." This is selfish and shortsighted thinking, at best.

If a lawyer's primary concern is getting his or her name "out there," then this is like winning the lottery. If, however, the lawyer's primary concern is the well being of his or her client (as it darn well should be), then deflecting, rather than basking in the spotlight is very often the better, if not the more expensive choice. The inspiration for this article is the result of a recent case that came into my office. As I discussed the matter with my senior assistant, Ann, we realized that by doing the right thing for the client, I would literally be turning away an incalculable amount of free publicity. Yet it is precisely in my client's best interests for this case to disappear, as much as possible, from the public radar.

Headline News 1.2.jpgImagine that you are arrested for some kind of criminal charge, or even a DUI, and somehow or other, it winds up in the paper, or on TV. It doesn't have to be a feature or huge, front-page story, but for some reason word of your arrest gets out. Immediately, people who know you start talking. Your employer may find out. At that point, what's the best thing that could happen? When you really think about it, the best thing that could happen is for the whole thing to just go away. There is no way to undo the publicity that has already been given to the story, so what you really want is that no one else hears about it, and that everyone who already has just forgets about it.

That won't happen with some self-serving lawyer yapping away about your case. No matter what he or she says, or how much he or she insists that you're innocent, all the attention is just that- attention, and it focuses right on you. If you want a situation to go away, you need to make it go away, and the first way to achieve that is to NOT talk about it. Over the years, I have quietly been involved in many cases that have started out being watched by various media outlets. You wouldn't know about any of them, and that's precisely the point.

Beyond just deflecting attention away from a client, I believe in deflecting it away from the officials involved in it, as well. It is far better to handle a case when neither the prosecutor nor the Judge feel the weight and scrutiny of the public gaze. To be sure, there are some cases that will always hold the public's attention. When a public figure (think Kwame Kilpatrick or O.J. Simpson) is in trouble, the media will follow the case no matter who says what. There are also certain kinds of cases that capture the media's attention just because of the facts. Most often, these are serious cases. A particular murder, kidnapping, or even case of the church secretary embezzling hundreds of thousands of dollars will sometimes be "interesting" enough to follow independent of anything any of the parties say about it.

It's sometimes easy to forget that Judges are elected officials. So is the county prosecutor. As much as any politician wants "good" press, he or she certainly wants, more than anything, to avoid any "bad" press. Being seen as soft on crime is not a political asset. Imagine, for a moment, that you're a Judge. When election time rolls around, do you think it could ever hurt you to be known as the Judge who is really tough on drunk drivers? Yet if your opponent were challenging you by claiming that you had been too soft on drunk drivers, you'd be stuck defending yourself. Looking at it from an electability standpoint, being seen as tough on drunk drivers is an asset, while being seen as too soft is a political liability.

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July 9, 2012

Michigan - Traffic Stop and Possession Charge in the Detroit Area

A Traffic Stop by the Police can lead to all kinds of troubles. Most DUI cases begin with a Traffic Stop. So do a lot of Drug Possession cases, as well. This article will focus on those Traffic Stops where drugs are found, and result in a Possession charge. Within my Practice, most of the Possession charges I see involve things like Marijuana or prescription medications like Vicodin or Xanax, and usually begin by being pulled over.

In the preceding article, I pointed out that about 90% of my caseload (consisting of things like DUI or related matters, such as Drug Possession cases and Driver's License Restoration Appeals) begin with a Traffic Stop. In that regard, almost all of my day-to-day work can trace its origin the operation of a motor vehicle, and contact with the Police as a result.

MSP RUn 1.2.jpgIn the real world, far more Criminal cases than one would ever think begin with a Traffic Stop. Just by running a person's License, the Police frequently discover that an unpaid Ticket has led to a Suspended License, or that a person has an outstanding Warrant for some matter or other, and the Driver suddenly finds him or herself in the back of the Police car, while their car gets searched. That's when things often take a turn for the worse.

There are about a million ways this can happen. A person may get stopped for weaving, and as part of a DUI Arrest, marijuana or some other drug is found. The Police can arrive on an accident scene and somehow turn up a few prescription pills from somewhere. However it happens, it happens, and a person winds up facing a Possession charge, or a Paraphernalia charge that all began with a drive or a ride in a vehicle.

Frequently, after the Police search a person, or their car, and then Arrest them for Possession of something like analogues, marijuana or any other controlled substance I am asked, "can they do that?" I have to chuckle at that question, because the answer has already been given: Of course they can do that - they already did it!

The real question, of course, is whether the search is legal. And this is always a critical inquiry in any Traffic Stop case that leads to a possession charge. Before even considering that question, however, the whole reason for the Traffic Stop, or the initial Police contact itself, needs to be questioned. If there is any legal basis to have the Stop ruled improper or unlawful, then any and everything that takes place thereafter will never see the light of day in a Court of Law, including anything that the Police find. The Police need a reason to pull someone over, and while there a million reasons that they can "give," sometimes, the very circumstances themselves tend to contradict the reason "given" for the Stop.

In assessing the legality of the Stop, it is important to find out if there is any Police in-car video. The Police can say anything they want about why they pulled someone over, but, as the old saying goes, a picture is worth a thousand words. Dash-cam video can give clarity to unresolved questions between competing versions of the same story. It can be a wonderful tool to challenge a Traffic Stop, or what takes place during the Stop, especially when the Police are more obviously acting more on a "hunch" than anything else.

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September 19, 2011

How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2

In part 1 of this article, we began examining the role of the PSI in a Criminal case. We learned that the PSI, or Pre-Sentence Investigation, is a comprehensive process that ultimately results in written Sentencing Recommendation being made to the Judge presiding in any given case. We also learned that the PSI Recommendation could be thought of as a "blueprint" for what the Sentence will be, as almost every Judge out there follows that Recommendation to the letter, or extremely close to it.

Here, in part 2, we'll pick up where we left off, beginning with a look at how the Probation Officer interviewing someone is likely to perceive that person. We'll continue by examining why, in a DUI case, for example, how well or poorly a person scores on the legally required alcohol assessment test impacts what happens to them at Sentencing.

Interviewing2.jpgFirst, bear in mind that everyone showing up for a PSI has been convicted of a crime. Technically speaking, Probation only deals with convicted Criminals. This may seem too harsh or strong a label for someone who has, for example, received their first DUI, and it may not sit well with them, but it does not change the reality that no one is required to meet with a Probation Officer for singing too much in the church choir. A person needs to understand how they are perceived by Probation Officer who will be interviewing them, if they want to positively influence that Probation Officer's conclusions about them.

And make no mistake about it, there is a whole psychological profile to Probation Officers. They are an interesting group, and, whatever else, really are the single most important person in a Criminal case, in that they write the Recommendation that will, in almost every case, be followed by the Judge. Knowing how to deal with them, and understanding things from their side of the desk is an important component in producing a better Sentence.

An example of what not to do in a PSI applies to those first-time Offenders, like the 1st Offense DUI person we mentioned above. Most middle-class DUI Offenders have a hard time thinking of themselves as "Criminals." DUI is, after all, more a crime of bad judgment more than anything else. Almost anyone facing a DUI would never think of robbing or harming someone, or stealing anything. So these individuals, who lack any kind of criminal mindset, are typically horrified at the prospect of being considered, much less treated, as a "Criminal."

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2" »

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September 16, 2011

How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1

When a person is facing a Criminal charge, they usually have lots of questions. First amongst them, however, is some version of "what's going to happen to me?" In this article we'll take a step back, and instead of trying to answer the question "what's going to happen," we'll examine why whatever does happen, in fact happens. In other words, we'll try to find out why a particular Sentence is handed down in a Criminal case.

Having been a Criminal Lawyer for over 20 years, I certainly have learned a lot. And while I hated to be on the receiving end of these comparisons 15 or so years ago, the reality is that I know a lot more now than I did then. I have learned things that go way beyond knowledge of the Law itself. Often, what is most important in predicting the outcome of any specific case has more to do with where the case is pending, or the identity of the Judge to whom it has been assigned, rather than the rule of Law itself.

Spotlight copy.jpgThis is why, when we speak of Doctors and Lawyers and other professionals who have around 20 years experience, we say they're "hitting their stride." This is also why you'll never see a rich and famous person being represented by a newbie Lawyer. Think of any celebrity Criminal case; the Lawyer who stands in front of the microphones is always a seasoned veteran.

Yet for all that, I began to figure out certain truths about why cases turned out the way they did pretty early on in my career. Here's where anyone who has ever had a prior Criminal case will instinctively understand what I'm about to say, while everyone else will simply have to believe the logic of it:

What happens, meaning the Sentence that a person receives, in any case, is always either identical to, or nearly identical to the Sentencing recommendation sent to the Judge by the Court's Probation Department.

This bears some explanation.

In all Felony cases, and in many Misdemeanor cases (such as DUI), the Law requires that, prior to a person being Sentenced by the Judge, they go to the Court's Probation Department for an evaluation and interview, called a Pre-Sentence Investigation (PSI), and that the Probation Department, as a result of that process, generate a written Report and Sentencing Recommendation to be used by the Judge in Sentencing the person.

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1" »

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September 12, 2011

Possession of Marijuana or Other Drugs and the Mandatory Michigan Driver's License Suspension

There is a consequence to all Drug Possession cases that is often overlooked, if not unknown, by many people facing such a Charge. This is the mandatory Driver's License Suspension that MUST be imposed in any case where a person has been convicted of a Drug Crime. Strangely enough, this mandatory Suspension is the same, whether or not the person was charged with Possession of Marijuana, or Possession of Heroin, or any substance in-between, either Felony or Misdemeanor.

The reason this mandatory Suspension ever came into existence is another fine example of what happens when Lansing acts. As I have said in previous articles, I try to keep politics out of this blog, but I cannot escape the truth that pretty much EVERY LAW that is enacted in our state either makes life more difficult, or expensive.

SmokeJail.jpgHonestly, when is the last time a Law was passed that made your life any better? The smoking ban is, in my view, the only exception to this proposition, but that really depends on whether you smoke, or not. I don't, so I like the change.

Thus, a number of years ago, our state legislature decided that it didn't like the idea that most people who faced a Drug Possession charge didn't go to jail. The feeling was that simply being placed on Probation wasn't enough consequence, so it was decided that a provision would be written into the Law that anyone convicted of any Drug Possession charge who WAS NOT Sentenced to Jail would thereby have his or her Driver's License Suspended for 6 months, in any 1st Offense case, and for 1 year if the person had a prior Drug Possession conviction. The Court in which such a conviction took place became legally obligated to impose the Suspension, and would, of Course, have to report the matter to the Secretary of State as a "Drug Crime."

Although there is a corresponding License Sanction in Drug Delivery cases, we'll keep our focus on the far more common Possession charges.

To soften the "sting" of leaving so many people without a way to get to work, the Legislature added a provision to the Law that allows the Judge handling the Possession case to grant the person a Restricted License. In 1st Offense cases, this can be done after the person has suffered through 30 days of the Suspension. In 2nd Offense cases, the Judge can grant that Restricted License after the person has gone 60 days with a fully Suspended License. This has not worked out so well, however.

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September 24, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 4

In part 3 of this article, we looked at how merely staying out of Jail in a "Delivery" case was important, but by no means the only consideration in the proper handling of such a charge.

In this 4th and final installment, we'll conclude by briefly looking at the least common of the "Delivery" charges, those involving the "Manufacture" of a Controlled Substance. Then, we'll talk a bit about what a person should look for as they seek good Legal representation for one of these charges, and what they should keep in mind as they consider which Attorney to hire.

Pot.jpgTechnically speaking, a "Delivery" charge is called "Delivery/Manufacture" of a Controlled Substance. As we observed earlier, most actual "Delivery" charges involve hand-to-hand "buys" by an undercover Police Officer.

When "Manufacture" is involved in a "Delivery/Manufacture" charge, it almost always involves Marijuana plants. I have seen cases where the Police were at a residence for an unrelated reason, and saw a Pot plant growing in the house. Now I'm not some horticulturist, but even I know that the UV rays from sunlight, or at least from growing lights, are needed to create the active ingredient in Marijuana, THC.

Still, that single plant, even if it is "impotent" cannot be grown (absent certain, and still unclear "Medical Marijuana" situations) without violating the law. Even if a person is growing an impotent Weed plant indoors with no intention of ever "harvesting" it (because it is impotent anyway), the mere act of possessing that plant is enough to give rise to the "Manufacture" part of the "Delivery/Manufacture" Law. In other words, that plant, which might only weigh a few ounces, will create a ton of problems.

Of course, I have also seen cases where there has been cultivated growing, those cases ranging from a few plants for personal use to what can be described as a bumper-crop in a veritable indoor farm.

Once in a while, a person is found to be making something like Meth, or Ecstasy, but in truth, I see very few of those cases.

The point is that whether it's 1 impotent plant or 1000 high-grade, cultivated plants, merely possessing it or them can and will give rise to a "Delivery/Manufacture" charge.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 4" »

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September 20, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 3

In part 2 of this article, we began examine "Delivery" of a Controlled Substance charges. We concluded our examination by noting that, in most cases, and with some good Legal work, a person facing such a charge can be kept out of Jail (or Prison).

Beyond just staying out of Jail (or Prison), however, there are a host of other considerations that might escape the mind of a nervous person.

Coppers.jpgI have noted in other aricles on this Blog that when someone is really facing a Jail Sentence, they will often swear to do anything and everything they have to in order to avoid getting locked up. I have little doubt that at the time, as they look down the barrel of a real possibility of getting locked up, they mean it. However, in my 20 years of doing this, I also realize that once the Sentence has been passed down, and there is no Jail, it takes a matter or hours, and not even days or weeks, for the person to start wondering if they could have done any better.

In other words, even though "Probation from Hell" is a better outcome than Jail, that "Probation from Hell" gets real old, real quick.

Beyond, then, simply keeping a Client out of Jail, it becomes an equally important part of my focus to help the Client avoid that "Probation from Hell," meaning, in essence, Probation with too many conditions.

Exactly how that's done would take a series of articles in itself. In the end, it means I spend the necessary hours with my Client preparing them for their Probationary interview, part of what's known as the PSI, or Pre-Sentence Investigation.

By law, in any Felony case, and in any number of Misdemeanor cases, the Law requires that, before the Judge Sentences someone, they undergo a "Pre-Sentence Investigation," conducted by the Probation Department. The result of this process, which always includes an interview by a Probation Officer, and often involves the administration of a Substance Abuse Evaluation (a written test that ends up getting a numerical score, the higher of which is worse than a lower score), is a printed Recommendation to the Judge advising him or her what the Sentence should be, from Jail or Prison to Probation, Tether, Rehab, Classes, Testing, or whatever is felt necessary to help the person not become a repeat offender.

With proper preparation, the Client can avoid lots of Conditions. In other words, Rehab might be avoided in favor of a Drug Education Class. Tether might be avoided in favor of more frequent urine testing. The point is to not have to do anything that can be otherwise avoided. It's a long, involved process, but the few hours up front needed to do it right will pay huge dividends later, when Rehab, Classes, or whatever is NOT ordered, and lots more hours (and money) are saved.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 3" »

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September 17, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 2

In part 1 of this article, we observed that there are 2 kinds of Delivery charges: Those involving an actual "Delivery" (or "Manufacture") of a Controlled Substance, and those which allege "Possession with Intent to Deliver."

As we noted, someone facing an actual "Delivery" charge, especially one stemming from a hand-to-hand sale, or sales, is in particularly hot water. Let's talk about those actual Delivery charges.

dealer1.jpgDelivery and/or Possession of different Drugs carry different penalties. Delivery of Cocaine and Delivery of Ecstasy carry a much more severe penalty than Delivery of Marijuana. In addition, the amount, or quantity, of Drugs Delivered, Possessed, or Possessed with Intent to Deliver affects the severity of the potential penalty.

The majority of Delivery cases that I handle are in Macomb County, where my Office is located. Most of them involve the Delivery of a smaller (as opposed to a larger) quantity of Drugs. In Cocaine cases, this means under 50 grams. In Marijuana cases, it often involves a few pounds or less. In Ecstasy cases, it often involves 100 or fewer "hits."

Most often, by the time I am contacted, the person has already been approached about working with the Police. They'll have questions for me about whether or not they should do it. As a general rule, I do NOT advise "working" with the Police in most cases.

If a person, because of a combination of factors, such as their prior Record and/or the amount of Drugs involved in the new case, seems likely to be sent off to Prison, then we'll consider our options to avoid that.

In the majority of situations, no matter how dire it might seem at first glance, the case can be worked out for no Jail, and no Prison time That essentially means there's really no reason to march into harm's way by snitching.

Back in the mid-90's, when the Law was different, the Delivery of ANY amount of Cocaine required a MINIMUM of 1 year in Prison. And Prison meant Prison: the Big House, not some local County Jail.

In those cases where the evidence was rock-solid, and there was no way out, I'd structure a deal with the Prosecutor and the Detective in Charge whereby the Client would do a little "work" (as little as possible) in order to get the Delivery charge dropped to a simple Possession charge, thereby avoiding a trip to Jackson and all the fun that comes with a Prison term.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 2" »

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September 13, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 1

This subject will be broken into a series of articles. We'll examine both kinds of "Delivery" charges: Delivery or Manufacture of a Controlled Substance as well as Possession with Intent to Deliver a Controlled Substance. In my Criminal practice, I see these charges made in cases involving all kinds of substances, so we'll also examine Delivery charges involving Narcotics and "Designer Drugs," like Ecstasy, to those involving the Delivery or Manufacture of Marijuana.

You don't have to be a Criminal Lawyer to realize that a Delivery charge is serious business. Very often, at the time of Arrest, a person is confronted by the Police and asked to "help" themselves by "working." In other words, the Police want the person to help bust other Dealers or Suppliers. Perhaps the biggest mistake anyone facing this situation makes is thinking the Police will just settle for getting names.

Deal12.jpgIn my nearly 20 years of handling cases and dealing with Undercover Narcotics Officers and Detectives, I have learned, as they so often tell a person willing to give up some names, that they already know most of those names. They want buys, or introductions. In other words, "working" means working, not talking.

The Police will often try to impress on the person facing a Delivery charge how serious the matter is. Very often, they will remind the person of the maximum penalty under the law for such an offense. This, while technically true, ignores the fact that unless the person already has a really bad prior record, or there is a particularly large quantity of Drugs involved, they are unlikely to see much, if any, of that time behind bars.

And here is as good a place as any to point out that when Police, Prosecutors and Defense Lawyers talk about these kinds of cases, we often refer to them as a "Dope Case." The same term is NOT used when talking about simple Drug Possession charges

So, to set the stage, we can safely say that pretty much any charge involving Delivery is much more serious than any charge which involves simple Possession of a Controlled Substance.

With that as a backdrop, it is important to point out that there are really two "kinds" of Delivery charges. The first, and more serious, is that which involves an actual Delivery of a Controlled Substance. Most often, the person arrested has made a sale, or any number of sales, to an Undercover Narcotics Officer. These are called "hand-to-hand" buys, and really represent the "granddaddy" of all Drug charges.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 1" »

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June 4, 2010

Possession of Marijuana in the Detroit Area - The Typical Case

As a Criminal Defense Lawyer, I might otherwise be inclined to note that there really is no "typical case," and that each case is unique. While that's true, there are some things that follow certain patterns, and Possession of Marijuana cases are no different. In this article, we'll talk about one of the more common scenarios leading up to a Possession of Marijuana charge, the Traffic Stop.

In my 20 years of handling Marijuana cases, I have probably seen a "Possession" charge in every imaginable circumstance. For all of that, however the most common situation involves a Traffic Stop.

Weed.jpgWe will not be focusing much on the legality of the Traffic Stop itself; that would involve writing a big, fat, legal textbook rather than a Blog article. For our purposes, understand that as a Defense Lawyer, I always look to see if there are grounds to reasonably, successfully challenge the Traffic Stop. If so, then that's an option. In most cases, however, the reality of the situation is that the Judge isn't going to listen to the Police Officer testify as to his or her reason for pulling you over, and then say something like "that's baloney...this case is DISMISSED!"

The typical call in my Office is from someone who got pulled over for one reason or another, and was found with weed. Most of my Clients have no prior drug record, but a fair share of them do have a prior conviction. In either case, the Client wants, first and foremost, to avoid any Jail time.

This is were I can get a little angry about some of the things I hear. When I hear, for example, from someone who has no prior convictions, and they tell me they're calling around for a Lawyer, and that one or another with whom they've spoken has told them that they'll keep them out of Jail, I get mad. Not because I think there's any chance of them going to Jail, but because I know, right off the bat, that the person is almost certainly NOT going to Jail, and that kind of scare-tactic sales pitch is, well, baloney.

That's about as accurate and honest as a Dentist finding a cavity and telling the Patient "I can fill that, and this way your brain won't swell up and your skull won't explode." It was never going to happen, anyway. Ditto for Jail in a first offense weed case.

In fact, in 20 years and countless weed cases, I honestly cannot ever recall a single Client in a first offense Possession case going to Jail, or even coming close to it, for that matter.

Continue reading "Possession of Marijuana in the Detroit Area - The Typical Case" »

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May 3, 2010

Marijuana Possession in Michigan - It Can't be Medical After the Fact...or Can It?

Criminal Charges for Possession of Marijuana seem to be occurring at about the same rate they always have, at least from the perspective of my Practice. Since Medical Marijuana was legalized in Michigan over a year ago, I have crossed paths with it, but not in a way that has been a legal defense to a Criminal Charge.

A person need only read the newspaper to learn that pretty much everyone is still a bit confused about the exact application of the new Medical Marijuana Laws. A few cases have been brought at the District Court level, and some aspect of the Medical Marijuana Laws has been raised as a Defense to those Charges, but nothing really decisive or guiding has yet to come from any of Michigan's Appellate Courts. Recently, some cities have begun prohibiting or restricting marijuana dispensaries. The final outcome to all of this is still unsettled, and any predictions are probably still premature. A recent e-mail I received from one of the Principals of the Michigan Medical Marijuana Association outlined the contradictory positions of 2 State Agencies regarding when an applicant for a Medical Marijuana card is considered "legal."

medical_marijuana_prescription.jpgThe The Michigan Medical Marijuana Law itself is simple, but not clear enough to prevent these contradictory positions. This spells potential trouble for anyone caught with Marijuana who does not have a Medical Marijuana Card, even though the law clearly states that a card shall be issued within 15 days of a valid application being submitted. It further states that if no card is actually issued within 20 days form the date of the submission of a valid application, that application shall be deemed "granted."

It would appear that if a Card is subsequently issued, the 20 day period will be easy enough to define. However, in cases where an application is rejected for one reason or another, such as a typo or missing piece of information, and even if that information is later provided and the Card issued, it is arguable that the 20 day period did not apply prior to the submission of the corrected application. I would expect that to be the position of the Police and the Prosecutors.

From the perspective of a Criminal Lawyer, having the proper certification to dispense, grow, or possess Marijuana is seen as a potential defense to a related Criminal Charge. I say "potential defense" because the certification or permission granted by the Medical Marijuana Laws are not unlimited. A person cannot start an outdoor, 100-acre Marijuana farm, and neither can a person drive around with 10 pounds of Marijuana in their car. There are limits to what is allowed under the new law, and even if the exact edges of those limits have not yet been clearly defined, certain things obviously fall well outside of them.

Continue reading "Marijuana Possession in Michigan - It Can't be Medical After the Fact...or Can It?" »

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February 8, 2010

Probation Violations in Michigan - I Missed a Urine Test

In other Blog articles about Probation Violations, I have pointed out that the person facing the Violation faces an uphill fight. By and large, a person gets Violated for doing something they shouldn't have (like pick up a new charge or test positive for drugs), or for NOT doing something they were supposed to (like fail to show up for a urine test, or "drop").

This article will focus specifically on those cases where a person has missed a urine test. If this applies to you, hopefully you're reading this before you ever receive notice from the Probation Department of a Violation or Show Cause (another fancy name for Probation Violation).

chemist1-2.jpgI say that because there are some things to do to minimize the damage caused by a missed "drop." If a person has waited until they hear from the either the Court or the Probation Department, the ability to take protective action diminishes considerably.

To begin with, it really doesn't matter where the urine test was to be provided. Many Probation Departments have a person go take their tests at a "facility" such as JAMS, Drug Testing Services, Inc., or Michigan Court Services, Inc. JAMS is by far the most popular facility in the Tri-County area. Other Probation Departments will administer their own breath or urine tests, and send the urine out to a laboratory for analysis. Some Courts even order people to report to their local Police Department to have a breath test done on a daily basis, but that's not the subject of this article.

Whatever the scheme, a miss is a miss.

In my practice, I hear all kinds of stories about how a person called their Probation Officer to explain why they missed, or called beforehand to tell them they couldn't make it. Sometimes, a person will tell me that they left a message for their Probation Officer explaining the situation, and because the Probation Officer didn't call back, they assumed that everything was okay. Other times, the person tries to contact the facility to "make up" the missed test, only to be told that there's nothing that can be done, and the Probation Officer has been notified of the miss. While many of these stories are true, we come back to the same point made above: a miss is a miss.

And that point really hits home when that miss is the reason for a Probation Violation.

So what should a person do when they miss a test?

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December 30, 2009

Possession of Marijuana 2nd Offense in Michigan

As common as Marijuana Crimes are in Michigan, it's not surprising that more than a few of them are for 2nd Offenses. I was recently asked, in my role as Criminal Defense Lawyer, about the penalties for a Second Offense Possession of Marijuana. And the answer to that question is not as clear as one might first think.

In an earlier Blog Post, we learned that Marijuana Possession can be charged as either a violation of a Local Ordinance, or a violation of State Law. Most local municipalities have a Marijuana Ordinance, and under their terms, Possession of Marijuana is designated as a Misdemeanor, punishable by no more than 93 days in Jail (and, as pointed out in that article, any Jail time, at least in a 1st Offense, is extremely unlikely) and a fine of up to $500 plus Court Costs. In addition, there are Mandatory Driver's License Sanctions (6 months Suspension of License; a Restricted License for the remaining 5 months may be granted by the Judge handling the case, after the first 30 days of the Suspension have passed) which must be imposed upon conviction.

smoking_joint.jpgPossession of Marijuana is also a Misdemeanor under State Law, but it is punishable by up to 1 year in Jail, and a fine of up to $2000. In addition, State Law violations also require the same mandatory Driver's License Sanctions.

Those are 1st Offense penalties. For a 2nd Offense, things can either take a turn for the worse, or not. If you think that's a curious observation, you're right. The truth of the matter is that what happens to anyone who is busted a 2nd (or even 3rd) time for Marijuana is really a matter of luck. If a person has already been convicted of Possession of Marijuana, and is then charged a 2nd time under State Law, the penalty rises to double that of a first State Law violation. This means a person can be charged with a Felony, punishable by up to 2 years in Jail, a fine of up to $4000, and even more severe License Sanctions (1 year Mandatory License Suspension, with no driving whatsoever for the first 2 months; The Judge handling the case may allow a Restricted License for the remaining 10 months, after the first 60 day Suspension has passed) than those that accompany a 1st Offense.

Even if a person has been convicted of Possession of Marijuana once before, and they are subsequently charged under a Local Ordinance, then there is no "Double Penalty" of any kind. That's why I noted above that whether a case goes one way or another is more a matter of luck than anything else.

Continue reading "Possession of Marijuana 2nd Offense in Michigan" »

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December 23, 2009

Fraudulent Prescriptions in Michigan - Part of the Pill Problem

In an earlier article on this Blog, I noted that there is a definite increase, at least in my Criminal Practice, in the number of cases involving prescription medication, and particularly in those involving Vicodin and Oxycontin. These drugs have, in recent years, become part of the menu of drugs used recreationally. In years past, it was more common to find someone with a residual habit caused by having to legitimately take these drugs for a real medical condition. In those cases, the reliance on the drugs continues after whatever condition for which they were originally prescribed has cleared up. Pretty much every celebrity in the papers reported going to rehab claims to have a problem with prescription painkillers as a result of some injury.

While the number of Possession of Analogue cases has skyrocketed, the number of cases arising from the act of getting, or trying to get these drugs, has also soared. Perhaps the most common charge is what is known as a Fraudulent Prescription charge. This can involve anything from trying to call in a phony prescription, pretending to be from a Doctor's office, to using stolen prescription pads, or just being the person who appears at the pharmacy to pick up a script.

drugshot.JPGBefore we look at the legal implications of such a charge, let's look at some of the common telltale signs seen by pharmacy employees as they detect these kinds of fraud.

It goes without saying that there are certain drugs which raise suspicion far more than others. People don't get high on anti-biotics, so a phone call, supposedly from a Doctor's office, for a 7 day supply of an antibiotic is far less likely to arouse any curiosity than a phone call for a large supply of Vicodin.

I recently spoke with a Doctor who told me of a case where a local pharmacy had called him to verify a prescription in his name for 100 Vicodin. The Doctor confirmed the pharmacy's suspicion when he indicated that even in the most serious of injuries, he would never prescribe more than 60 at any time. The pharmacy thought the number was unusual, and the phone call confirmed that. The same Doctor told me how his prescription pads, with his DEA number on it, has been duplicated and stolen countless times, despite all the precautions he takes to safeguard against that.

Legally speaking, it is not uncommon for someone arrested for Fraudulent Prescriptions to subsequently be found to have been engaging in the practice for some time. In other words, once the Police start looking into the State database (formally known as Michigan's Prescription Drug Monitoring Program, and it's tracking mechanism, called MAPS) where all prescriptions are archived, they often find a person has been prescribed an unusually large amount of these drugs, sometimes from the same Doctor's office to different pharmacies, other times from supposedly different sources to an even larger number of pharmacies. By the time many people resort to using phony scripts to obtain these drugs, they have developed a serious dependence on them.

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December 7, 2009

Possession of Narcotics Paraphernalia in Michigan - Even a Pot Pipe?

My Criminal Defense Practice has me in Court on a daily basis in the Metro-Detroit area, and one of the more common, and often confusing charges I deal with is Possession of Narcotics Paraphernalia. Very often, my Client will ask if a simple "Pot Pipe," clearly used for nothing stronger than Marijuana, can be considered "Narcotics Paraphernalia."

And the answer is yes.

marijuana pipe.jpgAlthough the words "Narcotics Paraphernalia" often appear in many of these laws, other, similar laws use the term "Drug Paraphernalia." Whatever the words used, these laws are all Local Ordinances enacted by a City, Township, or Village. There is no State Law regarding the Possession of Narcotics Paraphernalia.

Under these various Ordinances, the Offense of Possession of Narcotics Paraphernalia is a Misdemeanor, punishable by a maximum of 93 days in jail (don't worry, jail sentences are extremely rare), and a fine of up to $500, plus Court Costs. At first glance, Possession of a Pot Pipe might seem less serious than actual Possession of Marijuana, but in fact, where a Marijuana charge can be completely kept off of a person's Record, a Paraphernalia charge cannot. Consider this example:

Two people are arrested after a Traffic Stop (forget the details, because we can get sidetracked with all of that). When the Police search them, or pat them down, they find a small amount of Marijuana on the one person, and a Pot Pipe on the other. Accordingly, one is charged with Possession of Marijuana, and the other is charged with Possession of Narcotics Paraphernalia.

When they go to Court, the person with the Marijuana charge is told by his or her Lawyer that because they have no prior Drug Record, the Marijuana charge can be kept off of their Record using something known as a "7411," and that they will not be sent to jail. The person charged with paraphernalia, however, is told by their Lawyer that although they will not go to jail, the charge will go upon their Record. Forever.

This is the key difference between these two charges. There is no possibility of keeping a Possession of Narcotics Paraphernalia charge off of a person's Record.

In pretty much every Paraphernalia case I handle, if the charge is "solid," meaning not likely to be dismissed because of some fault or weakness, and if the person I'm representing has no prior Drug Record, I try and have the charge "amended," or changed, to Possession of Marijuana so that I can keep it off of their Record. In most cases, this can be done, but there are some Municipalities that do not have their own Marijuana Ordinance. In those cases, no such "switcheroo" between the charges can be done. Instead, a deal is usually worked out which will have the charge completely removed, or "come off" the person's Record 1 year after it goes on.

For all of this, what's considered a mere "Pot Pipe" can turn out to be a bowl of troubles for the person caught with it.

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December 2, 2009

Michigan Law - OWPD - Operating While in the Presence of Drugs

A few years back, the State of Michigan enacted a new Law which created a new crime, called Operating While in the Presence of Drugs. Even prior to the enactment of the new Law, it was always illegal to Operate a Motor Vehicle Under the Influence of Drugs, and the charge associated with that offense was known as OUID. Now, Driving Under the Influence of Drugs is part of the overhauled OWI law, and included in that law is the new "Presence of Drugs" Offense, set forth in section (8).

The history of these laws is not nearly as important as their consequences. OWPD simply defines "presence" of drugs as "if the person has in his or her body any amount of a controlled substance..." This means that a person who submits to a urine test and, for example, tests positive for Marijuana, can be charged and convicted of the Offense simply because the substance was in their body (i.e., any amount in their body). I have seen this Offense charged in Macomb County.

Pretty much everyone knows that marijuana affects the user for up to several hours after consumption, and pretty much everyone will agree those effects are gone the next day, if not far sooner. Under this new law, a person who smoked a small amount of Marijuana almost 30 days before any urine test may well be "positive" for "any amount" of drugs within their body, and be subject to the same penalties as a Drunk Driver. Remember, the metabolites of Marijuana show up in urine for up to 30 days.

Of course, other Drugs have much shorter half-lives, making a positive urine test much more likely to indicate recent ingestion. Even so, it is very clear that to drive under the influence of drugs is a crime. This new law goes way beyond that. Think about it this way; under this law, if a person uses Marijuana even once, in their lifetime, they cannot drive without violating this law until they test themselves and make sure that any trace amount is out of their system, which, as we know, can take up to 30 days.

With the exception of a $500 Driver Responsibility Fee for 2 years (as opposed to $1000 for OWI), all the penalties for a 1st Offense violation of this law are the same as they are for a 1st Offense DUI:

$100 to $500 fine and one or more of the following:

Up to 93 days in jail.

Up to 360 hours of community service.

Driver's license suspension for 30 days, followed by
restrictions for 150 days.

Possible vehicle immobilization.

Six points on driving record.

$500 Driver Responsibility fee for two consecutive years.


The point to all this is just to note that many people may not even be aware that they are violating the Law when they drive their car, even those who would never think to endanger anyone by driving under the influence of anything. Fortunately, in my Practice, which involves handling all kinds of DUI and other Driving and Driver's License Cases, the charge of OWPD has only come up rarely. Given the apparently unfair effect of the law, let's hope it stays that way.

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November 11, 2009

Possession of Analogues in Michigan - The Pill Problem

In this article, I'll be taking a short break from my ongoing series about License Restorations and will instead address an issue that is coming up more and more frequently in my Criminal Practice. It seems there is an ever-increasing number of cases involving the Possession of, or attempt to acquire, Analogues. Analogues are drugs which are chemically similar to other drugs. Perhaps the most common example is Vicodin, which is chemically similar to codeine, and can produce similar effects in the user. It is an opiate, meaning it's narcotic-like effects are similar to the whole family of drugs that are produced from opium, including morphine and heroin. Another frequently-abused Analogue is Oxycontin, which has been described as "heroin-in a pill."

I limit my Practice (and therefore my experience is likewise limited) to Macomb, Oakland and Wayne Counties. In this Tri-County area, there has been a virtual explosion of cases involving Analogues Charges. I assume that it's not much different all around the state, but I can only talk about the Detroit area. Many people have never even heard the term "Analogues" until they a charged with a crime involving them. Typically, a person is found in possession of some pills for which they did not have a valid prescription. Very often, the explanation they give has something to do with some kind of pain (back pain is a common complaint) and the generosity of someone who gave them a few pills to help. Even in cases where that story is true, it does not change the legality of possessing these medicines without a valid prescription for them.

vicodin-pills1.jpgRelated cases include things like obtaining, or attempting to obtain the medication by fraud. Charges related to stolen prescription pads, fake prescriptions, phony "call-ins" where someone pretends to call a prescription in on behalf of a Doctor, and even the stealing of these medications from legitimate patients have likewise been on the rise.

Possession of Analogues is what's technically called a "High Court Misdemeanor," meaning it carries up to 2 years in Jail. This is sort of a "hybrid" Crime, but the easiest way to understand Analogue Possession Cases is that they are low-level Felonies.

It is, unfortunately, not uncommon to see the same people charged over and over again with crimes involving Analogues because of their highly addictive properties. Sometimes the compulsion to use these drugs far outlasts both the need and valid prescription for them, causing the once-legitimate user to become a long-term addict. In the worst cases, some people realize that the cost and difficulty of obtaining these drugs is actually more than using one the drugs they are chemically similar to, heroin. A significant portion of heroin users will inform a Court that their drug problem started with the use of Analogues.

Continue reading "Possession of Analogues in Michigan - The Pill Problem" »

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October 30, 2009

Keeping Drug Charges off your Record in Michigan - 7411 - The Short Version

This is another installment of "Short Version" Blog articles which take the most important points from a longer, full-version article. In this article, we'll boil down the most important aspects from the longer article "Criminal Defense Lawyer in Michigan, whose Practice involves the regular handling of Drug Cases in Macomb, Oakland and Wayne Counties, I am often asked by my clients about a way to keep a Drug Charge off of their Record.

In Michigan, there is a provision of the law known as "7411," which is the abbreviated citation for the actual law, MCL 333.7411. This section of the law is truly a gift for anyone without a prior Drug Record who winds up facing a Drug Possession Charge. It allows a person with a pending Drug Charge to work out a deal where they offer a Plea of "Guilty" to a Drug Possession Charge, and the Court, by arrangement, "holds" that Plea without putting it on their record. The best way I've thought of to describe how this works is this:

confidential stamp1.jpgA person charged with a Drug Possession Crime has his or her Lawyer work out a 7411 deal. If the deal goes through, the person Pleads guilty to the Drug Possession Charge, with an understanding that the Judge will "hold" the Plea in his or her desk drawer for a period of time. During that period (typically, about 1 year) the person will be placed on Probation (this may be Reporting or Non-Reporting Probation) and ordered to do certain things and not do others. If they do what they are ordered to do, and don't do anything they're not supposed to do, then at the end of the period set by the Judge, the whole matter is dismissed, and never goes on their Record.

Because all Drug Possession charges carry a mandatory Driver's License Suspension upon conviction (6 months for a 1st offense, with no driving for the first 30 days; the Court may, if it so chooses, grant a Restricted License for the remaining 5 months), the 7411 is a real break. Because a 7411 deal means there is no conviction, then the Secretary of State is not notified of anything, and thus there is no License Suspension.

Of course, if the person doesn't do what they are ordered to do as a Condition of Probation (like report, if that was ordered, or provide a urine sample, if that was ordered), or if they do something they weren't supposed to do (like get arrested for a new crime, or test positive for Drugs while on Probation), then their Probation will be "Violated" and the Judge is likely, before imposing any other punishment, to "Revoke" or take away the 7411 deal. This means that a conviction will then go on their Record and their License will subsequently be Suspended by the Secretary of State for a Drug Crime."

7411 is available for any Drug Possession Charge. This means that whether a person is charged with the Misdemeanor Offense of Possession of Marijuana, or the Felony Charge of Possession of Cocaine, Possession of Heroin, Possession of Analogues (Vicodin, Oxycontin, Valium, or any other narcotic derivative in pill form), or even Possession of Ecstasy ("E"), or any other Drug, for that matter, the whole case can be kept off of their record if they have no prior Drug Crimes in their past.

For those who meet the eligibility requirements of 7411 and who are successful in getting the deal, it offers what can basically be described as a "free pass." 7411 can only be granted once in a person's lifetime, so there is no second bite at the apple. In cases where a person doesn't have a good shot at beating the Charge, 7411 offers the same final outcome; the whole thing goes away with no Record.

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October 28, 2009

Marijuana Crimes in Michigan - The Short Version

This article is another installment of "Short Version" posts which boil down the essential points of larger, more detailed articles. This article will review the most important points set out in both Part 1 and Part 2 of the full-version article on Possession and Delivery of Marijuana. Because my Criminal Practice is limited to Macomb, Oakland and Wayne Counties, the issue of Jail time as discussed here may be different for cases being heard outside of the Metro-Detroit area.

Possession of Marijuana
is a Misdemeanor Offense. It can be charged either under State Law or Local Ordinance. When charged as a State Law Crime, the maximum penalty that can be imposed is up to 1 year in Jail (under all but the most exceptional circumstances, spending even 1 day in Jail is highly unlikely), a fine of up to $2000, and a 6 month mandatory Suspension of the Driver's License, with a Restricted License being available for the last 5 months, after the first 30 days of the suspension.

20090403_marijuana_leaf-1.jpgMost often, Possession of Marijuana is charged as a Local Ordinance Offense, and carries a maximum of 93 days in Jail (again, even serving 1 day of that, in all but the most unusual circumstances, is exceedingly unlikely), a fine of up to only $500, and the same 6 month suspension of the Driver's License.

A Possession of Marijuana Charge can be kept off of a person's record. If a person is under 21 years of age at the time of the Offense, and has not used what's called HYTA (which stands for Holmes Youthful Trainee Act), and doesn't have much, if any, of a prior Criminal Record, they can Plead guilty to the charge under an arrangement with the Court that provides the whole case will be deferred (kind of like kept in the Judge's desk drawer) and the person required to serve a term of Probation. If they complete that Probation without any problems, such as picking up any new charges or testing positive for drugs, and if they otherwise do whatever the Judge orders them to do, (that is, not have a "Probation Violation") the whole case will be dismissed at the end of the period of Probation

For anyone over 21, or even someone under 21 who has used HYTA before, the same kind of deal can be worked out using what's known as 7411. "7411" is a provision of the law (formally known as MCL 333.7411) which provides that person with no prior Drug Record can Plead guilty under an arrangement with the Court that keeps a Drug Charge (and Possession of Marijuana is a Drug Charge) off their record, just like HYTA does.

In the case of either HYTA or a 7411, a fine is assessed, and certain Conditions of Probation are ordered by the Judge. One of the most important parts of either of these deals is that since there is no Conviction recorded, there are no Driver's License Sanctions and thus no Suspended License.

In cases involving Possession with Intent to Deliver Marijuana, the potential punishment is the same as that for the Offense of Delivery and Manufacture of Marijuana. Both of these are Felony Charges. In cases where a person has been charged with Possession with Intent to Deliver (called a "P-WID") the goal of the Defense Lawyer is to reduce the charge to simple Possession so that a 7411 can be negotiated. HYTA is available (for those under 21 at the time of the Offense) in "P-WID" and actual Delivery Cases.

When someone has a prior Drug Record, and keeping a new Charge off their Record is not a possibility, then the goal of the Defense Lawyer is to avoid as much of the punishment and penalties as possible. The extent of what a person is facing, as well as what can and cannot be done by their Lawyer, depends on several factors, perhaps the most important of which is where the case is being heard.

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October 26, 2009

Possession and Delivery of Marijuana in Michigan - Part 2

This is the Second Part of our 2-Part article about Marijuana Cases in Michigan. In Part 1 of this article, we looked at simple Possession Charges, had a brief glimpse at Medical Marijuana, and then we touched on Possession with Intent to Deliver, and Delivery and Manufacture of Marijuana Charges. After reminding the reader that my Practice and experience in this field, while considerable, is limited to Macomb, Oakland and Wayne Counties, we examined how a person with no prior Drug Record can keep the whole Charge off of their Record using a provision of the Law known as a "7411."

In Part 2, we'll see what can be done for people who cannot keep a Possession of Marijuana Charge off of their Record because of a prior Drug Crime, and we'll look at a different option to keep a Marijuana Charge (or pretty much any Drug Crime) off of a person's Record, if the Offense occurred before their 21st birthday. In addition, we'll examine how to do "Damage Control" for those people who are facing the Charges of Possession with Intent to Deliver, and Delivery and Manufacture of Marijuana. Again, the same "disclaimer" from Part 1 applies here: I am a Criminal Defense Attorney whose office is in Mt. Clemens, and, as such, my Practice and experience (and therefore first-hand knowledge) in these matters is limited to handling cases in Macomb, Oakland and Wayne Counties. If your case is not being heard in the Metro-Detroit area, then the information provided in this article might not accurately describie how things are done where your case is pending.

large_Marijuana-Seizure-state.jpgAs we learned in Part 1, a "7411" is only available to someone with no prior Drug Record. If a person has a prior 7411, or any prior Drug Crime which was placed upon their Record, then they cannot have any subsequent Drug Charge (and Possession of Marijuana is a Drug Crime) deferred under section 7411. The old saying is that "you get 1 bite at the apple," and it holds true in the Law generally, and with Drug Crimes in particular.

Assuming a new Marijuana Charge is not likely to be dismissed or "beat" at Trial, a person who was over 21 at the time of the Offense, and who is otherwise ineligible for a 7411 deferral, must accept the fact that keeping a new Marijuana Charge off of their Record cannot be done. Instead, the focus for the me, at least, as the person's Defense Lawyer, shifts to seriously avoiding as many of the penalties as possible that a Marijuana Charge brings.

In cases where a person has a prior Drug Crime on their Record, and then picks up a subsequent Possession of Marijuana Charge, the goal of the Defense Lawyer moves from keeping it off their Record to minimizing all the negative consequences possible and, most importantly, to keeping them out of Jail. This is really a long-winded way of saying the focus shifts to "full-blown Damage Control." Of course, the first thing any Lawyer looks for is a way to beat the case. In truth, however, getting cases dismissed is far more the exception rather than the rule. When an analysis of the facts and circumstances surrounding a Marijuana Charge (or any other Charge, for that matter) lead one to conclude that the charge is likely to "stick," then minimizing all the negative consequences for the Client becomes the first order of business.

Continue reading "Possession and Delivery of Marijuana in Michigan - Part 2" »

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October 23, 2009

Possession and Delivery of Marijuana in Michigan - Part 1

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.

Continue reading "Possession and Delivery of Marijuana in Michigan - Part 1 " »

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September 7, 2009

Michigan Criminal Charges - Avoiding a Conviction with HYTA

One of the first questions that I ask any caller, as a Criminal Attorney practicing in Macomb, Oakland and Wayne Counties, is "how old are you?" I ask this because there is a provision of Michigan Law, Called the Holmes Youthful Trainee Act, or HYTA, which allows a person who commits a crime after their 17th, but before their 21st birthday, to keep the whole thing off their record.

confidential1.gifIn an earlier Blog post, we examined how Drug Possession charges can be kept off anyone's record, regardless of age, if they have no prior Drug Record, under something known as a "7411." The HYTA law can produce the same result, but two features make it very different from 7411:

1. HYTA only applies to people charged with a crime which occurred after their 17th birthday, but before their 21st birthday. That age range is inflexible; if someone is charged with a crime that occurred one day before their 17th birthday, or on the very day of their 21st birthday, they are ineligible. Section 7411 does not have any age limitations.

2. HYTA applies to all kinds of Crimes, not just Drug Possession charges, like section 7411. There are certain exceptions: Crimes punishable by imprisonment for life (Capitol Offenses), Major Drug Crimes and all Traffic Offenses.

The reasoning behind this law is the recognition that young people, on occasion, do dumb things. An instance of bad judgment before one has the chance to mature and think like an adult should not necessarily handicap that person for life with a Criminal Record, which can have all kinds of negative consequences for future advancement. HYTA is equally applicable to Felonies and Misdemeanors, with the exceptions mentioned above. HYTA status allows a person to prove to the Court that they can stay out of trouble long enough to warrant dismissing the whole case without ever placing it upon their Public Record.

Continue reading "Michigan Criminal Charges - Avoiding a Conviction with HYTA" »

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September 6, 2009

Drug Possession in Michigan - Keeping it off your Record with 7411

As a Criminal Defense Attorney in Mt. Clemens, Michigan, handling Drug Possession Offenses, including Possession of Marijuana, in the Detroit area is part of my everyday routine. Sometimes, a person with whom I'm speaking has a vague, or general idea that a Possession charge can be kept off of their record. Most often, the person will tell me that they've heard of some legal provision that will allow a Drug Crime to be taken "under advisement" or "come off" their record.

637885_-top_secret-.jpgWhile that's partly true, the whole truth is even better: In many cases, especially in Drug Possession cases where a person has no prior Drug Possession convictions, it is usually possible to keep the entire matter from ever going on their record in the first place. This means that there is never anything which will need to "come off" their record later.

Many people are unaware that a conviction for any Drug Possession charge requires the Court to Suspend a person's Driver's License. While there is some availability for a Restricted License in Drug Possession cases (see my earlier Blog post for a detailed discussion of Restricted Licenses in Drug Cases), the bigger point here is that all of that can be avoided, and there will be no License Suspension, if the whole case is kept off a person's record in the first place.

The most common method by which a charge is kept off a person's record is known as a "7411." This actually refers to a statue (the technical term for a law) in Michigan's Public Health Code, formally known as MCL 333.7411. MCL stands for Michigan Compiled Laws, the formal title for Michigan's statutes (laws).

7411 is also known as a "deferral," which means, in a figurative manner of speaking, that a person, by arrangement with the Court, offers to plead guilty to a Drug Possession charge. The Court, by that same arrangement, essentially agrees to keep the whole charge and plea "secret."

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August 12, 2009

Drug Possession in Michigan - What is the Amount Required?

"How can they charge me with possession for such a small amount?" This is another question that comes up quite often when handling drug cases. Possession charges can come about when a small amount of drugs, or residue of drugs is found. In some cases, a single marijuana "roach" (butts of a marijuana cigarette, often too small to be smoked any further), or a few "roaches" are found as part of a vehicle search. Similarly, leftover residue of burnt marijuana or other drugs, inside a pipe, is sometimes used to bring this charge.

Typically, the first question anyone who is facing such a charge asks is "isn't there some minimum amount" needed to charge a person with Possession?

The short answer is yes, but just enough to test. This means that even the smallest amount of drugs can create legal troubles.

Moreover, charging someone with Possession requires a lot less evidence than convicting someone of that charge. The often asked question, "how can they charge me with Possession?" can be answered rather simply: They can because they did.

Of course, there are scenarios where the mere presence of residue is not enough to sustain a Possession charge. For example, it is widely known that paper currency often carries small, or trace amount of drugs (especially cocaine) both because of the use of rolled up bills to snort the drugs, and because money and drugs are often in the same area. What's more, as money that has drug residue is folded up or grouped with other money that does not, some of the "clean" money will pick up some of that residue.

489547_cocaine_stripes.jpgThus, a trace amount of drugs on money found on a person, without more, is not enough to bring a Possession charge.

But a folded up rectangle of paper that was used to hold cocaine, or heroin, or a baggie with drug residue left inside is another story.

Similarly, the Prosecutor has to show that a person "knowingly" or "intentionally" possessed the drugs. Thus, if the "roaches" are in the ashtray of your brother-in-law's car, which you were borrowing, the charge may not stand up. If, on the other hand, the "roaches" are in the ashtray of your car, and you just forget to dump them out, then a Possession charge will probably stick.

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