Michigan Criminal Defense Lawyer Blog

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.

Possession 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" »

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.

Before 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.

Continue reading "Fraudulent Prescriptions in Michigan - Part of the Pill Problem" »

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.

Although 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.

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.

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.

Related 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" »

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, (and also includes, on occasion, St. Clair, Lapeer and Livingston 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:

A 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.

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.

As 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" »

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.

The 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 " »

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.

In 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" »

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.

While 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."

Continue reading " Drug Possession in Michigan - Keeping it off your Record with 7411" »

"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.

Thus, 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.

Continue reading "Drug Possession in Michigan - What is the Amount Required?" »