Articles Posted in Criminal Cases

As a Michigan criminal and DUI lawyer, about 2 of the most common questions that I’m asked are, “Am I going to jail?” and “Can you keep me out of jail?”  Even the quickest look at a sampling of DUI lawyer websites reveals that the whole “Avoid jail!” theme is used everywhere, by everyone.  It seems to be the strongest pitch a lawyer can make for your money.  I’m no exception; I make it, too, and I know that if I was in a pickle, staying out of jail would certainly be my first and biggest concern.  However, as I have pointed out in many of my various DUI articles on this blog (as well as my website), in the kinds of drunk driving cases and clients I handle, jail is usually not, for the most part, even on the menu.  But the cold truth that I have not seen addressed (until now) on any lawyer site is that some people do, in fact go to jail., and you can be sure that the folks sitting there didn’t book themselves in voluntarily.

jail-thumbIt is generally understood that, as a lawyer, talking about this isn’t good for business.  That’s why attorneys avoid it like the plague.  That’s also a disservice, however, to someone seeking real world information about what happens after a drunk driving arrest.  Of course, it’s my first goal to avoid jail as much as possible, in every situation possible, but even the WORST lawyer out there has the same goal, although perhaps not the skill to do it quite so well.  There is no hard and fast rule about who does get some jail time as opposed to who doesn’t, but there are a few helpful observations we can make to clarify things a bit.  On the one hand, if you’re facing a 1st offense DUI, you’re not really facing any jail time.  On the other hand, someone with a bad record has a much better chance of doing some time than a person with no prior record.  I addressed this in a recent article, and common sense is a pretty good guide here.  If you’re facing your 5th DUI, then yeah, you can count on some time.  Beyond that, however, there is a mix of variables that figures into all of this.  Some jurisdictions are really tough, while others are much more forgiving.  In fact, one Judge can be way more lenient than another would be in the exact same situation.  You also have to include the prosecutor in this mix of variables, as well, because not only do individual prosecutors from the same office have different approaches to things, but some offices are much more flexible than others.

Our discussion here will be limited to the things I handle my own practice: DUI cases and criminal cases involving things like suspended and revoked license charges, drug possession, and other misdemeanors and lower-level felonies, mostly for professionals or other good wage earners. meaning good people caught up in a bad situation.  For the most part, if you’re a solid citizen and haven’t been in trouble before, and you’re facing something like a DUI or suspended license charge, jail isn’t really on the menu at all.  Even if you have had a prior scrape with the law, including, perhaps, a prior DUI, you’re still probably safe in almost every one of the courts where I practice.  But here’s where things get dicey:

In part 1 of this article, I began my examination of the role of alcohol and substance abuse related issues in Michigan criminal, DUI and driver’s license restoration cases, and how my specialized background, which includes having completed a post-graduate program of addictions studies, makes my office different.  I pointed out that I balance my overriding mission to help people at all phases of their relationship to substances, but to never become “preachy” or seemingly fixated.  We looked at how alcohol and drug issues are interwoven into the vast majority of criminal cases, and of course, all DUI charges and possession cases.  I cautioned that, as much as I want to help people recognize and deal with substance abuse related issues, there are plenty of situations where I use my clinical knowledge to prevent a person from being perceived as having an alcohol or drug problem they don’t.  This is especially relevant in 1st offense DUI cases, where a drunk driving incident that just happens runs up against the court’s inherent “alcohol bias.”  In this second installment, we’ll turn our focus more to recovery, and how a deep knowledge of recovery and recovery processes is important to the win I guarantee in every driver’s license restoration case I take, and how all of these considerations kind of coalesce in criminal cases.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/drug-addiction-spiritual-recovery-1.1-289x300.jpgIn the context of a Michigan driver’s license restoration case, understanding recovery is everything.  A person must prove his or her case by what is called “clear and convincing evidence” (this is a high standard of proof; think of it as requiring, in part, that after the evidence in a case is presented, the hearing officer deciding it will not be left with any lingering or unanswered questions).  There are 2 primary things a person must show:  First, the person must demonstrate that his or her alcohol (and/or substance abuse) problem is “under control,” meaning that he or she can fix a sobriety date (this doesn’t have to be an exact date; someone might say, for example, “early fall of 2009,” or something like that), and second, that his or her alcohol (and/or substance abuse) problem is “likely to remain under control.”  This means that the person can show that he or she is a safe bet to never drink (and/or use) again, and has cultivated the commitment and the tools to remain sober.  This is complicated stuff, as anyone who has tried a license appeal before and lost knows all too well, particularly if the person was genuinely sober.

That I really understand recover from the inside-out, the outside-in, and from all the clinical perspectives, as well, provides me with a huge advantage as a license restoration lawyer.  So much so, in fact, that I guarantee to win every case I take.  The catch?  I will only take a case for someone who is truly sober.  As far as I know, I’m the only lawyer who writes anything at all about sobriety, and I am completely certain that amongst every other lawyer out there, I have written more about sobriety than all of them combined – and HUNDREDS of times over, at that.  The job of the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers is more or less to “test” whether a person is sober or not, and they are very knowledgeable and do their best to examine the clinical information provided in a license appeal case through the lens of the legal requirements that must be met in order to win.  It is the lawyer’s job to make sure that the clinical evidence submitted meets those legal standards.  That task is a HELL of a lot easier when, as the lawyer, I fully grasp the clinical and practical realities involved in getting sober.  For everything that could be said here, the bottom line is this:  If you’re sober, then you know that sobriety is a journey, and not a destination.

The other day, my paralegal, Ashlee, told me of a conversation he had with a caller who had gotten into trouble because of a relapse after having been clean and sober for a number of years.  She smiled as she recalled telling the caller, “Well, you certainly called the right place with us because we kind of specialize in substance abuse matters.”  I nodded in agreement, but as I began to think about it later, realized how accurate Ashlee’s statement really was.  Every single day, for almost all of the day, my staff and I deal with issues related to drinking and drugs in criminal, DUI and driver’s license restoration cases.  These issues are so central to what I do (more on that in a bit) that a number of years ago, I returned to the University campus (no online classes for me) and completed a post-graduate program of addiction studies.  Between handling DUI cases and driver’s license restoration appeals, issues directly related to the development, diagnosis, treatment of and recovery from alcohol and/or drug use disorders are at the core of everything I do.  In this 2-part article, I want to look at the critical importance of understanding substance abuse issues in the context of DUI (OWI) and driver’s license restoration cases, and in certain other criminal cases, as well.

In a 1st offense DUI case, for example, I use my clinical https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/SA1.1.jpgtraining to prevent a person who does not have a drinking problem from getting caught up in the court system’s inherent “alcohol bias” and wind up being treated like he or she does.  This means I work to prevent them from getting ordered into unnecessary substance abuse counseling, education and/or treatment.  By contrast, when a person with a 2nd offense DUI tries to explain, as many 2nd offenders do, that no matter how bad things look and how much the court system will “think so,” he or she doesn’t have a drinking problem, I have to make clear that, by law, that every 2nd offender is required to complete some kind of counseling.  I must also make clear that, clinically speaking, no matter how much the person does or does not drink, just by their record alone, there is obviously some kind of risky relationship to alcohol.  I have to help my client see that, at this point, labels don’t really matter anymore.  I deal with it all, from 1st time DUI offenders who quite obviously have a serious drinking problem to 2nd offenders who do not, and really are just unlucky, The same holds true for certain criminal charges, and particularly drug and even marijuana possession cases.

The court system is not (and does not have the resources to be) very nuanced or subtle about a person’s relationship to alcohol, operating instead from the position that, if you’re facing a DUI, you probably have some kind of drinking problem.  Lawyers typically line up to make their money by agreeing with and never challenging a client who say, “not me.”  From a business point of view, the customer is always right, so if a client with multiple prior DUI’s calls in and is looking for a lawyer who will echo that he or she doesn’t have problem, it’s a temptation that’s hard for many to resist.  After all, money talks and BS walks, right?  On the flip side, however, nobody really wants to hire some lawyer who thinks he or she is Ms. Sobriety or Mr. Rehab, either, and won’t fight to protect them.  Where, then, is the balance?  I think it’s fair to say that if we are going to be honest here, we need to acknowledge that a lot of the trouble people get into, especially those that result in DUI, criminal or drug possession charges, are the result of poor decisions made after drinking or using.  Imagine if you asked a law-abiding, non-drug using person, “Would you mind keeping these  Vicodin pills (or this cocaine, or whatever) in your pocket while as we drive around?”  They’d look at you like your nuts – but to a drug user, having them in their pocket as they travel around in a car doesn’t seem like such a stupid idea.  The point I’m making is that the court system doesn’t have it completely wrong about alcohol and drug problems and how they “ride in” with various cases, but that same system doesn’t always get it right, either.  Not every DUI driver has a drinking problem.  The lawyer must find the right balance between these seemingly competing positions in order to produce the best outcome possible for the client.  Here’s what I mean…

One of the most important issues that I face as a Michigan criminal and DUI lawyer is a person’s prior record.  It is absolutely critical to how things work out in just about every case.  Curiously, it is a subject that has largely been overlooked on lawyer’s websites, mine included.  In this article, I want to take a look at how a person’s prior record can affect the outcome of his or her case, and how this applies across the board, from serious things like 3rd offense (felony) DUI all the way to a simple traffic ticket, and everything in-between, including 1st and 2nd offense drunk driving cases, as well.  This is not a pretty topic, because the simple truth is that it’s not good for a lawyer’s business to be writing things that can make a case seem tougher as opposed to all the things that can make it better, but your record is a necessary topic to discuss, and any lawyer worth a nickel is going to have to address it at some point with his or her client.  I think it’s about time to drag it out into the light and give it a good once-over.

criminal-clipart-criminal-clipart-1-281x300In some cases, the importance of a prior criminal record (or lack thereof) is obvious; for example, in DUI cases, because a person with a prior conviction within 7 years will be charged with a “2nd offense.”  In DUI cases, there is no getting around a case being a 2nd offense or 3rd offense, whereas a person arrested for something like possession of marijuana may be charged and ultimately treated like a 1st time offender, even if he or she has a prior record for the very same thing.  Worse yet, there seems to be little or no logic as to why, beyond just being “lucky,” in a manner of speaking.  In other situations, a person may have a prior record for a completely unrelated offense, or even multiple offenses; those convictions may be recent, old, or a even a combination thereof.  It goes without saying that having NO record at all is better than having any kind of record, but given that a prior scrape or two with the law isn’t that uncommon, lots of very good people have some missteps in their past.  That said, I’m sure the reader understands that the fewer of those on record, the better.  This should make sense without the need for any kind of further explanation.

This can get weird, however, because in the real world, a prior record can be a big deal in some cases, and not matter much, or even at all, in others.  I have, for example, represented someone with a rather bad record charged with his or her 1st DUI and have been able to easily reduce the drunk driving charge because the person doesn’t have any prior drinking and driving convictions.  By contrast, there are some really tough jurisdictions (thankfully most of which are NOT in the Detroit-area) where a single, unrelated and old conviction can be a stumbling block to a plea bargain in a new and completely unrelated case.  With these somewhat extreme and opposite situations serving as bookends, let’s turn now to how things most often play out in the real world.

In my roles as a Michigan criminal, driver’s license restoration and DUI lawyer, I have always tried to keep my fees reasonable.  That said, I have never sought to compete with the bargain lawyers, as the level of service that I provide (and which should and does translate into tangible results) is much different from theirs.  For example, I guarantee to win every driver’s license restoration case I take.  Recently, however, health insurance costs have gone way up, essentially becoming the straw that broke the camel’s back in my office, because over the last few years, everything else has gone up, as well.  I’ve held the line on costs until now, but since mine have gone up again, so too, will my fees, although only modestly.  I’m out to cover my increased costs, not build a new vacation home.  While most lawyers don’t go anywhere near publishing their fees or writing anything about them, I do.  That I list my fees in the first place makes me very different from every other lawyer I know; that I’d put up an article announcing and explaining a price increase is yet another way that I’m different, but I wouldn’t do things any other way.  Personally, I won’t do business with any operation that hides its prices or is secretive about costs, and given that one of the current, in-vogue buzzwords is transparency, I think an article about prices is necessary and, well, transparent.

left-feesYou know the old saying, “There’s no such thing as a free lunch?”  Well, it’s not only true, it is an axiom of commerce.  Nobody gives anything away for free.  There is always a motive.  Even if you stop into a furniture store to fill out a card to enter a raffle for a free couch with a “no purchase necessary” disclaimer, the store figures that the cost of one (and you can count on this, it’s not a top-of-the-line model) couch is more than worth bringing hundreds of people into the showroom and have them walk all the way to the back, past all the other furniture, to enter the contest.  Over time, they will clean up on impulse buys that make the cost of the couch well worth it.  I’m no different.  I’m a nice guy, as honest as can be, and have my own motivation for being transparent, but I’m also perfectly glad to share it.  I figure that, by listing my prices, I can save my staff and I lots of time not having to deal with time-wasters and bargain hunters looking for a cheap lawyer.  In fact, just about anyone who emails and inquires “How much do you charge,” beyond having missed the fees I list on both my blog and website, almost certainly can’t afford the services I provide, either.  Hiring a lawyer, at least for the kinds of work I do, is kind of like hiring a laser eye surgeon to fix your vision, or a plastic surgeon to do some cosmetic work:  You can find bargains, and you can find cheap, but you will NEVER find the best in class using those criteria.  That goes for everything.

Of course, you can overpay for a lawyer, as well.  Anything near a $10,000 DUI, for example (regardless of whether it’s a 1st, 2nd or 3rd  offense) is, in my opinion, grossly excessive – unless it results in all charges being dropped.  Given that only about .17 percent of all DUI and DUI-related arrests result in an acquittal after trial, good luck with that (this, in part, accounts for why I attract a disproportionately high number of 2nd offense DUI cases; those clients are experienced, educated consumers and they identify with my candid and direct approach).  Always remember that when you hire a lawyer, you are paying for someone to go make your situation better.  Anybody can promise the world, make everything sound like it will all get dismissed, assure a great outcome, and then do all kinds of work.  The question becomes what work is actually helpful and/or necessary, and the answer involves making sure your lawyer charges enough to thoroughly examine the evidence first (that’s not going to happen with a cut-rate lawyer), and then challenges it when doing so is appropriate, and likely to improve your case, rather than just doing so in a shotgun approach that is really just “busy work” to justify the fee you’ve paid.  These tactics, while making a person feel like they’ve gotten a lot of work for their money, do tend to backfire with the court and cost a lot goodwill.  Judges know who is out to take people for a ride.  Yet for all of that, however, what am I doing with my prices?

Perhaps the single best and most valuable piece of legal advice that can be given to anyone being questioned by the police is to “shut up.”  Seriously, don’t say anything.  In my role as a criminal, DUI and even driver’s license restoration lawyer, if I could wave a magic wand and get my clients to do just one thing, it would be to keep quiet.  In this article, I want to take a quick and simple look at the value of silence, and how the natural urge to speak complicates just about everything.  Chances are, if you’re reading this because you’ve been charged with a crime , a drinking and driving offense, or need to get your driver’s license back, and you’ve probably said things along the way that you’d like to take back.  Although less frequently a problem in DUI cases, a situation just crossed my desk yesterday (the inspiration for this article, in fact) where someone who should not have said anything probably talked themselves right into a drunk driving charge.

raf,750x1000,075,t,5e504c_7bf03840f4.u2In that case, the person (I will use  “he/she” or “they” to avoid even a gender identification) had been in an automobile accident caused by the other driver.  This person left the scene, but the other driver got the plate and the police showed up at his/her home.  The person was rather drunk when the police came, and when asked about whether he/she had been drinking before driving and at the time of the accident, the person admitted to having done so, and having been drunk at the time.  Subsequently, the person tested out with a rather high BAC.  Although I cannot say much more, charges will be coming.  The problem here is that had this person simply NOT said anything, the police would have been faced with an almost certain inability to prove that he/she was over the limit at the time of the accident, effectively killing the likelihood of a drunk driving conviction.

I see this all the time in criminal cases, as well.  Let’s use an indecent exposure case for an example.  Imagine the police get a call about a guy exposing himself while driving on Main Street.  The caller can’t give a great description of the driver, but does give a license plate number.  Running that information, they identify the car as belonging to Fred, and the police contact him.  They ask Fred if he was anywhere on or near Main Street at the relevant time, and he answers “yes.”  With that answer, Fred has just seriously helped the case against him.  Now the police know that Fred was in the area at or around the time the caller said she was flashed.  Had Fred just said nothing, the police would probably not be able to prove he was even in the area, much less that he flashed anyone.  Fred, like so many people, probably had pangs of guilt and the inner turmoil of just knowing that the police “know” (knew) that he did it, so he thought it would be better to be honest.  To be clear, in most cases, the police do “know.”  Cops are smart, and most police officers develop a better sense of human nature than anyone in any other profession.  A street cop learns to read facial expressions and body language in ways you and I will never comprehend.  Still, “knowing” something is one thing, but being able to prove it is quite another.

In part 2 of this article, we continued our inquiry into probation violation cases in Michigan criminal and DUI cases.  In particular, we tried to see how the whole violation thing is perceived by the Judge who sentenced you for a drunk driving offense or something like a drug (including marijuana) crime.  We also noted that although positive test results are the most common reason for being violated, missed tests come in a reasonable close second, with false-positive results a distant third.  Here, in our 3rd and final part, we’ll go into the courtroom itself and see how it is proven that a person has violated his or her probation and how that plays out in front of the Judge.

Decorative Scales of Justice in the CourtroomUp to this point, we’ve looked at the 3 most common reasons that give rise to a probation violation:  A positive result, a missed test, and a false-positive result.  Now, let’s look at how these are handled in court and what must be shown to prove that there was, in fact, a violation.  That “showing” is technically called the “standard of proof.”  Everyone knows that if you’re accused of a crime and go to trial, the prosecutor must prove your guilt beyond a reasonable doubt.  A probation violation is proven by a much lower standard, called a “preponderance of the evidence.”  The most common way this is explained is to imagine the scales of justice sitting even, or level.  As soon as you put something on one tray, it goes down and the empty side goes up.  Now, if you put something of equal weight in the other tray, the scales go back to even and level.  If you put something that weighs just a little more on one side than you do on the other, then the heavier side falls farther down, and the lighter side remains higher.  Surely you get this.  A preponderance of the evidence means just enough evidence to tip the scales from being exactly even, one way or the other.

Let’s consider an example:  Assume that Sneaking Sam has missed a test.  Now, picture the Judge on the bench, with the scales of justice next to her, and they’re level (even).  She looks at Sam and says, “I have a notice that you missed a test last week, Sam.” She then grabs a 5-pound weight and puts it on one of the scales, causing it to tip.  So far, the preponderance of the evidence weighs in favor of Sam having missed his test.  Next, the Judge asks what Sam has to say, and his lawyer explains that Sam’s boss called him in early the day of the missed test because there had been a flood at the workplace, and hands up a letter from the boss to that effect.  The lawyer also offers up a make-up EtG test taken the next day.  The Judge then takes a 2-pound weight for the letter and a 2-pound weight for the make-up test and puts them on the other scale, causing the missed test side to rise.  Still, the scale hangs a bit lower on the side of the missed test.  That’s because the preponderance (think of it as the majority) of the evidence supports the idea that Sam did, in fact, miss his test.  Sure, he has a relatively good reason for doing so and it’s true that he has a clean make-up test, but in terms of the simple allegation that he missed the test, Sam’s evidence does not outweigh that on the “missed” side.

In part 1 of this article about Michigan probation violations, specifically in the Detroit-area district and circuit courts of Wayne, Oakland and Macomb Counties, we began examining what happens when a person who is on probation for a criminal or DUI case either tests positive or misses a test altogether.  I pointed out that to the Judge, a violation of his or her order to not drink (and/or not use drugs) by either a positive or missed test can feel like either getting the middle finger from the person to whom a break was given.  The only other alternative to “screw you, Judge,” is that the person is suffering from an overwhelming and irresistible compulsion to drink (or smoke weed or whatever).  As we noted, however it plays out, a missed or positive test does not look good.  I certainly understand that people who do have a drink (and get caught) are not, for the most part, trying to “flip off” the Judge, nor are they caving into cravings of some sort, but rather just want to be normal, like everyone else.  An order to not drink, however, must also be seen as a part of one’s punishment for the original offense, and a missed test, even if it is followed by a clean make-up test (or there is a “good” explanation for missing the test) is a violation of the requirement that a person test when directed, on the schedule ordered, and not one that is “convenient.”  In other words, part of the penalty for a criminal or DUI conviction is that you don’t get to act normal by enjoying an adult beverage.  At the end of part 1, we were, figuratively speaking, standing in front of the Judge who was wondering if a person tested positive because he or she is hell-bent on NOT following the rules or is otherwise unable to cope with his or her urges to drink (or use drugs).  We concluded by pointing out that it’s that very spot where most people really get a sense of how bad their situation looks, and asking what can be said or done to make it better.

Plan-or-Growth 2.0There is no simple, one-size-fits-all answer to that question.  And to be perfectly honest, some Judges are “easier” than others.  You can call them more forgiving, lenient or understanding, but the plain fact is that there are some Judges who won’t really have much interest in your side of things if you test positive, and I can think of at least one Judge who will have about ZERO interest in anything you have to say once you’re caught drinking or smoking weed while on probation.  In that sense, as you look for a lawyer, you need to find one who really knows the Judge or Judges in the court where your violation is pending.  For example, that Judge who would probably have the least interest in anything you have to say is also (not surprisingly) rather short on patience, so it would not be a good tactic to go in there with an attorney who will drone on and on about kinds of stuff she DOESN’T want to hear.  Any chance to change her mind needs to come right out of the gate, not after torturing her by babbling on and on….

As we noted above, the goal in a probation violation case is to convince the Judge that you neither callously disregarded his or her orders to not drink (or use anything else) nor do you have an underlying problem with urges too strong to resist.  Of course, everyone’s first strategy is to say that very thing.  Part of the problem with such a plan is that, almost without exception, everyone does and says that same thing.  Over the course of my 26 years, I have read, quite literally, thousands of DUI police reports.  Ask any DUI lawyer or any police officer what people say when the officer asks if the person has been drinking, and you’ll learn that far and away, everyone gives about the same answer; “2 beers,” “2 drinks,” or “a couple of drinks.”  No one replies, “Hell yeah; officer, I drank a lot, and man, am I am really drunk right now!”  Likewise, everyone who stands before the Judge for drinking while on probation says that he or she didn’t mean any disrespect nor do they have drinking problem.  So if that’s not going to fix things, what do you do?

As a Michigan criminal defense and DUI lawyer, I get called upon to handle a lot of probation violation cases.  In fact, it’s quite likely that if you’re reading this, you or someone you care about is facing one.  In this article, I want to take a real-world look at the 2 most common reasons people wind up getting violated:  A positive urine or breath test result or a missed test for alcohol and/or drugs.  Sure, there are plenty of other ways that people violate an order of probation, and much of what we’ll look at here applies equally in those situations, but most of the calls I get follow a positive result or a missed test.  I want this installment to be candid and conversational, as if you were sitting in my office and we were speaking across my conference room table.  I’m sure that you’ve already come across plenty of lawyers with catchphrases about your freedom, your future, and/or control over your life, or who focus on how tough and aggressive they are.  By now, you’ve probably grown weary of all that, so we’ll change focus and use this article to examine how probation violations play out in real life, and how I handle them.  This article will be divided into 3 installments, and will really explore the goings-on in a probation violation case.

27777764-fresh-we-need-to-talk-symbol-background-with-space-for-own-text-Stock-Photo-300x300We’ll start by looking at the hard truth that a lot of people (including lawyers) want to dance around, rather than face head-on:  When you’re caught giving a positive test result, the first impression is either that you’re giving the finger to the Judge or you have a real problem with alcohol and/or drugsProbation is a break; an opportunity to stay out of jail by, amongst other things, showing up for all required tests and then passing them.  Of course the job of your lawyer in a probation violation case is to get the Judge to see what happened as being neither a disregard of his or her order nor as proof that you have some irresistible compulsion to drink or get high, and for everything else that can be said, this is the real crux of the matter.  It should be pointed out that although most Detroit-area courts use the term “probation violation,” some others call it a “VOP,” meaning violation of probation, or a “show cause,” which is a hearing that requires you to go before the judge and show cause (a good reason) why you shouldn’t be held in violation.  Whatever it’s called, it’s all the same thing.

We should also note, at the outset, that good reasons do exist for having missed a test, and that false-positive results do happen.  Sometimes, the simple truth is that a person misses a test because he or she forgot, or got real busy, or had to go to work, but was not to avoid a positive result.  In a perfect world, when that happens, a person will be timely notified of a positive result and have an opportunity to retest.  In the real world, however, it often works out that by the time a person learns he or she has failed a test, it’s too late to do anything about it.  Sometimes, a test result is wrong, but when a positive result is correct, meaning you did, if fact drink (or use drugs), you need the kind of lawyer who is a persuader, and who can explain things clearly.  In other words, if the positive test result is correct, it couldn’t matter less if your lawyer has a Nobel Prize in chemistry; that’s not going to make things better in front of the Judge.  Instead, you need to convince the Judge to not put you in jail or otherwise hammer you.  At the end of the day, while some cases do involve false-positive results, most arise because you simply got caught, and here, you need to go into full damage-control mode.  Let’s examine, in turn, positive test results (when you did drink or use), false-positive results, missed tests, and what has to be shown for you to be found guilty of a probation violation and how that all goes down in court.

If you have been arrested for a drug possession offense in Michigan, whether it’s the simple possession of marijuana, possession of analogues (meaning drugs like Vicodin and Xanax), or other controlled substances, including things like cocaine, ecstasy and heroin, a lot goes through your mind.  Of course, you’re undoubtedly filled with regret (certainly regret at being caught), but chances are, the reality of a possible drug offense on your record also has you worried.  The point of this article is to reassure the reader – whether you’re the person facing the charge, or you’re researching for your child, partner, or someone close to you – that in most cases, many, if not all, of the negative consequences, including a drug conviction on your/their criminal record, can be avoided.

Criminal-RecordsAs of this writing in July of 2016, possession of marijuana (spelled marihuana in the law book) still violates state law except with a medical marijuana card.  Certain municipalities have either de-criminalized or even legalized possession of small amounts of marijuana, but chances are, if you’re reading this, it’s because you were pulled over and found to have some in a jurisdiction where it is still illegal.  I point this out because the attitude of some people regarding marijuana is a bit ahead of the law.  For all the argument and analysis about how things should be, or likely will be down the road, the fact is that if you are found to be in possession of marijuana in most places, you will face a misdemeanor drug crime, and like all other possession charges, that subjects you to suspension of your driver’s license, making it all the more important to avoid such penalties by keeping the whole thing off of your record.

To keep this article short, I’ll skip the in-depth analysis of the “legal maneuvers” required to keep a possession charge off of your record.  In the real world, there are generally 2 ways this is done:  For those who are under 24 years of age (in other words, the day of the arrest or citation must be before the person’s 24th birthday), a conviction can be avoided by what is called “HYTA” (pronounced “hi-ta” and formally known as the “Holmes Youthful Trainee Act.”  Until recently it only applied before a person’s 21st birthday, but that has changed.), or what is commonly referred to as 7411 (said like “74-11” and referring to the actual Michigan Compiled Law –MCL 333.7411).  Let’s repeat that more simply; drug possession charges are kept off of a person’s record by either using “HYTA” or “7411.”  Unfortunately, in the real world, cases are often a bit more complicated, like when a person charged with possession of marijuana is also charged with possession of paraphernalia, or a DUI offense, as well.  For anyone over 24, there is no HYTA available, and a conviction for possession of paraphernalia cannot be deferred under section 7411.  This means that the lawyer will often have to do some creative negotiating to keep your record clean.  No matter how you cut it, the bottom line is that you hire a lawyer to make things better, and in the world of drug possession and related charges, that means, first and foremost, keeping everything off of your record.