Michigan Criminal Defense Lawyer Blog
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.
I 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.
Many of the same considerations are present when someone is facing a Possession with Intent to Deliver charge. In truth, these cases are always a little bit “stickier” than outright Delivery charges, because there is an underlying notion that the person was going to “Deliver” the Drugs, even though there is no actual Delivery.
The penalties for “Intent to Deliver” are always the same as those for an actual Delivery. In other words, beyond using the language “Intent to Deliver” instead of “Delivery,” there is really no difference between the charges in any given case.
Nothing can account for the better handling of one of these cases more than experience. A Lawyer who is familiar with the local (meaning City and/or County), the Prosecutors and the Judges to whom the case is assigned already has a leg up on knowing what to do, and how things are likely to play out.
In that regard, every Judge before whom I regularly Practice is also very familiar with these kinds of cases. They have seen more than enough “Possession with Intent to Deliver” cases to know that, although they carry, by Law, the same potential penalty as an actual Delivery case, there is a qualitative difference between the two types of cases.
This difference is, of course, blurred to the point of being irrelevant if the person is pulled over and found with 5 pounds of Weed, or 2 kilos of Cocaine in their trunk. However, when a person is found with five $10 bags of Marijuana, or when they’re caught with two “8 balls” of Cocaine, most Judges understand that, whatever the technicality of the Law, getting hit with a “Possession with Intent to Deliver” charge, as opposed to a simple “Possession” charge, is often a matter of luck, or bad luck, to be more precise.
Thus, “Intent to Deliver” charges really fall into 1 of 2 categories:
1. Those where the Drugs were going to be Delivered, Shared, or Sold, and
2. Those where there was no intent to Deliver, Share or Sell the drugs.
Sometimes, it is possible for the Defense Lawyer to simply work out a Plea Bargain that gets the “Intent to Deliver” charge reduced to a simple “Possession” charge. This is most often the case when it is clear that the “Intent to Deliver” charge is more of an “overcharge” than an accurate assessment of the situation. Prosecutors often operate on the principal that they should begin with the most severe charge reasonably indicated by the facts of any given case. It goes without saying that most people facing any kind of charge have a much different idea of what’s meant by that “reasonably indicated” language.
There are some cases where the Prosecutor won’t budge, and the person is adamant in their refusal to plead to something of which they do not believe they’re guilty. This means, then, that absent a deal that reasonably satisfies both sides, the matter may have to be decided at Trial.
Trials are another subject that would necessitate a series of articles in order to get even a basic understanding.
For purposes of this article, it need only be pointed out that in many of these cases, some kind of deal or arrangement is reached at the “11th hour,” on the eve (sometimes on the very day of) Trial, and a mutually agreed-to resolution is had. From my point of view, this better involve, at a minimum, my Client NOT getting any time behind bars.
Obviously, the person found with 5 pounds of Marijuana or 2 kilos of Cocaine in their trunk is far less likely to see a deal dropping the “Intent to Deliver” charge to simple “Possession” than the person found with a few $10 bags of weed which they claim they bought for themselves for the week.
I hate to trot out a phrase that seems so over used, but it must be noted that every case is unique. I literally cringe when I hear someone say something like “My friend had the exact same charge and he was…. No two cases are the same.
Imagine someone mentioning that their sister was just diagnosed with breast cancer. How pointless would it be for someone to say “my cousin had the exact same diagnosis, and she died within a year.” Or, “my sister-in-law had the exact same thing and she did a little chemo and is fine now.”
Every case is unique unto itself. The city in which it occurred, the Detective in charge, the Prosecutor to whom it has been assigned and the Judge presiding over it are all factors that can have anything from a small to a significant impact on how things play out. And those are just some of the many factors that go into any particular case.
In part 4 of this article, we’ll conclude our examination of “Delivery” and “Intent to Deliver” cases. We’ll examine the less common “Manufacture” part of the “Delivery/Manufacture” charge, and we’ll talk a bit about what a person should keep in mind as they look for a Lawyer to represent them if they’re facing one of these charges.