Michigan Criminal Defense Lawyer Blog
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.
Honestly, 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.
While there are some Judges who will Order, at the same time they impose the Sanction, that the Restricted License be granted immediately after the 30 day “hard” Suspension, plenty of others require that the person come back to Court later, and file a Motion requesting those Restricted Privileges. Some even say “no.” And while I’m in business to make money, I see it as a completely avoidable waste that a Client needs to hire me for what could simply be Ordered in the first place.
As bleak as this sounds, there is a bit of good news to all of this. Since the Law requires the Suspension to be imposed upon a “conviction” for a Drug Possession Offense, any kind of plea deal that avoids a formal conviction likewise avoids the whole Suspension thing.
Under Michigan Law, there are 2 ways to avoid a conviction in a Drug Possession charge:
The first, and most common, is under a provision of the public health code, formally known as MCL 333.7411, and commonly known as a “7411.” This section of the law allows a person charged with a Drug Possession Offense to enter a Plea, and be Sentenced to Probation, without ever having the Plea actually go on their Record. If the person completes Probation without any problems, then the whole charge is dismissed. This means nothing ever goes on their Record, and is far better than any notion of having something “come off” your Record, which means that it went on in the first place.
Because a 7411 means the person is not formally “convicted” of whatever Drug Offense with which they have been charged, then a Court cannot Suspend the person’s License, and there is nothing to forward to the Secretary of State.
The other method for avoiding a Drug Possession only applies to someone who was under 21 years of age at the time of their Arrest or Citation. This provision of the Law is called the Holmes Youthful Trainee Act, or HYTA, and allows a person to defer, or avoid a conviction for a whole range of Offenses, including all Drug Possession Offenses, as long as that Offense, as noted, occurs before the date of their 21st birthday. By and large, a HYTA works pretty much the same as a 7411, except that a 7411 is limited to just Drug Possession Offenses, but has no age limitations.
I point this out because very often, when I’m explaining to a Client the benefits of a 7411 or a HYTA, they indicate their surprise to find out that they were in line to have their Driver’s License Suspended. That, of course, also tends to prove that if the legislature intended for the mandatory Suspension to act as some kind of disincentive for people to possess drugs which they cannot, it missed the mark. A person can hardly be dissuaded from doing something for reasons not known to them.
By Law, a person can have only one 7411 in their lifetime. This means that if a person has already had a 7411, and then is charged with another Drug Possession Offense, that prior case does NOT count, and the person will face a 1st Offense (6 months Suspended, Restricted allowed after 30 days) License sanction.
There is no limit to how many times a person under 21 can be granted HYTA status, but in practice, most Judges, unless the circumstances are truly exceptional, will only allow it 1 time.
It is not uncommon, however, to have a case where a person has had a Drug Possession charge deferred under HYTA, and then has a subsequent such Offense deferred under 7411.
At some point, though, the breaks run out. When that happens, a person facing what amounts to their 3rd Drug Offense have to bum rides for a while.
Chances are, anyone reading this is either facing, or reading for someone who is facing a Drug Possession charge. In that case, it is already too late for the little-known License Suspension aspect of the Drug Laws to stand as any kind of disincentive. Still, it’s good to know that many things can be done to avoid or limit these consequences.