Drug Charges

Of course, we are all free to come and go as we please, until we are not.

The criminal justice system begins when you are stopped, and so the initial question is whether it was appropriate for police to stop you in the first place. We can all envision the unpleasant, but wholly appropriate scenario, where an officer stops us for speeding, or for a busted tail light, or other equipment violation; you may not be suspected of criminal activity, but we all know that police stop civilians under these circumstances.

The law has a term for a more specific type of “stop”, called a “Terry Stop”, named for the 1968 US Supreme Court case of Terry v Ohio, 392 US 1 (1968), which held that a police officer may stop a suspect on the street, if the officer has “reasonable suspicion” that the person has committed, is committing, or is about to commit a crime. In turn, Terry defined “reasonable suspicion” as a standard of proof requiring officers to have specific articulable facts which, along with rational inferences, would lead a reasonable police officer to suspect that criminal activity is afoot. It is more than a hunch, even though that seems to be enough on TV.

The Terry case not only gave police officers the right to stop someone, as long as there is reasonable suspicion, the case also gave police officers the right to conduct a “Terry frisk/pat-down”, during a “Terry Stop”. However, the “Terry Frisk/Pat-down” is only legitimate the officer reasonably believes that the person “may be armed and presently dangerous.”

The 4^th Amendment to the US Constitution gives us all “the right to be secure in our persons, houses, papers and effects, against unreasonable searches and seizures. The 4^th Amendment also defines the circumstance when our “persons, houses, papers and effects” may be “reasonably searched and seized”, namely upon the issuance of a warrant, based on a sworn statement establishing “probable cause”, and particularly describing the place to be searched, and the persons/things to be seized.

In turn, the standard of “probable cause” comes from another US Supreme Court case, Beck v Ohio, 379 US 89 (1964), which defined it as existing when “a normal prudent person would believe that the facts point to criminal activity.” “Probable cause” is more than “reasonable suspicion”, but need not rise to the level of proof required for guilt in a criminal trial.

Can a search and seizure be proper, where police do not get an arrest/search warrant? Yes, under certain recognized exceptions to the general warrant requirement. Those exceptions are as follows:

Consent searches

Exigent circumstances

Search Incident to lawful arrest

Vehicle searches

Plain view doctrine

Special needs doctrine, consisting of:

School searches

Border/airport searches

Drug testing (e.g., on-the-job)

Inventory searches

Consent Searches:

Where a person consents to be searched, there is no requirement of a warrant, based on US Supreme Court cases, going back to 1921. In more modern cases (still over 50 years old), consent to search is based on an evaluation of all, or “a totality” of the circumstances.

Exigent Circumstances:

“Exigent circumstances” exist when an emergency arises so urgent, that waiting to get a search warrant would risk serious harm, evidence loss, or a suspect’s escape. Typical examples include giving emergency aid to someone inside a building; hot pursuit; fear that evidence will be destroyed; to prevent danger to the public or police (e.g., a burning building). The US Supreme Court has refused to issue a bright line test to tell us when “exigent circumstances” exist, preferring to address that question on a case-by-case basis.

Search Incident to Lawful Arrest

Searches in the physical area within the arrestee’s control have been subject to warrantless searches since 1969. The idea was to prevent the destruction of evidence, and also to protect police officers.

Vehicle Searches

Warrantless vehicle searches are considered proper, as long as officers have a reasonable belief, based on facts, that the vehicle contains evidence of a crime. This is based on Supreme Court precedent dating back over 100 years. However, the Court ruled in 2018, that police may not go onto private property to search a vehicle, at least not without a warrant. The vehicle search exception also allows officers to search locked/closed containers within vehicles.

Plain View Doctrine

Under the “plain view doctrine”, enunciated in 1990, officers can seize an item that they can visibly see, as long as the officer was legally in a position to see it, had a right to reach the physical object itself, and it must also be obvious that the object was illegal, or tied to criminal activity, based on probable cause.

Special Needs Doctrine

The special needs doctrine was first adopted by the US Supreme Court in the case of O’Connor v Ortega, which held that warrantless, suspicion-less, or reduced-standard searches in non-criminal administrative contexts like public schools, government workplaces, and probation systems, were completely proper. Typically, these involve high-safety risk situations like schools and borders/airports. This exception also authorizes warrantless drug tests, and inventory searches of vehicles by officers, of already-arrested suspects.

The 6^th Amendment to the US Constitution gives accused people certain rights, such as:

*The right to a speedy/public trial

*By an impartial jury, empaneled where the crime was supposed to have happened

*The right to be informed of the charges

*The right to confront adverse witnesses

*The right to subpoena favorable witnesses; &

*The right to have the assistance of counsel

This right to counsel has been considered so important, that for the last 63 years, states have been required to provide a free defense attorney to criminal defendants who cannot afford an attorney.

We have all seen on TV, that criminal defendants must be given “Miranda warnings”, to the effect that you have a right to remain silent; anything you say can/will be used against you in court; you have a right to an attorney; and if you cannot afford an attorney, one will be provided to you. This comes from a 1966 US Supreme Court case called Miranda v Arizona, 384 US 436 (1966)

This is designed to protect an accused’s right to a lawyer, and only applies, in situations of “custodial interrogation”. If the person is not in custody, i.e., is free to leave, there is no right to a lawyer. Miranda is also considered a 5^th Amendment case, in that the litigated statements that defense counsel is trying to exclude, are typically self-incriminating in nature; allowing such statements might implicate the 5^th, as well as the 6^th Amendments.

Also, there are a number of cases establishing exceptions to the “Miranda Rule”, such as when public safety is implicated, during routine traffic stops, undercover/jailhouse informants, and voluntary/spontaneous statements.

Statements taken in violation of a criminal defendant’s “Miranda Rights” are subject to being excluded from evidence, at time of trial. In turn, if that is the only evidence the police have, the criminal defendant must be released.

In Michigan, criminal court procedure will depend on whether you are charged with a misdemeanor (defined as a crime with potential jail time of less than one year), or a felony (crimes with potential jail time of more than one year). Let’s go briefly, through the procedure for each

Misdemeanor Matters – heard from start to finish in the District Court

Arraignment

Judge takes plea of guilty/not guilty/no contest/standing mute. Assuming no plea of guilty, the judge will also set the matter for pre-trial hearing. Also, importantly, the judge sets bond at this hearing, which may be “personal”, “cash or surety”, or “cash only”

“Personal bonds” are those that require no cash outlay. However, if there are any violations of the terms of bond, the personal bond amount must then be tendered to the court, or the defendant will be incarcerated.

Pre-Trial

These are hearings at which the Judge wants to be informed as to whether the matter will be resolved by guilty plea, or will be taken to trial. By the time this hearing occurs, the Prosecutor should have submitted his “discovery package” to defense counsel (at the latter’s request), so that defense counsel can know and advise the client whether it is wise to try the case or not.

Motions

There may be motions (or requests) to suppress evidence, if we feel that evidence will be submitted by the prosecutor, that should not be submitted/introduced

Trial

This is where the case gets presented to an independent jury, just as the US Constitution requires.

Pre-Sentence Report

Following a guilty plea at the pre-trial, or a finding of guilt by a jury, the matter is referred to the Probation Department, for an investigation and recommendation by them to the judge, for sentencing. The judge is not bound by the recommendations in the Probation Department’s Pre-Sentence Investigative Report, or PSIR, but most of the time, do follow those recommendations.

Sentencing

Following a guilty plea at the pre-trial, or a finding of guilt by a jury, the matter is set for sentencing

Felony Matters – begin in District Court, and if the case is “bound over” to Circuit Court, it then proceeds in the Circuit Court

Arraignment – same features as a District Court arraignment.

Probable Cause Conference (PCC)

An opportunity to resolve the matter with the prosecutor, which means that some exchange of “discovery” should have taken place. More formally, the PCC is where the parties inform the Court as to whether they want to proceed with the next hearing, the Preliminary Examination. If defendant wants to dispense with the Preliminary Exam, they are said to “waive the Preliminary Exam”

Preliminary Examination

This is a “mini-trial”, at which the only issue is whether there is enough evidence for this case to be “bound over”, or sent up to the Circuit Court, for felony handling. If the felony is dismissed, the case remains in District, for handling of any misdemeanors. If the felony is the only thing charged, and the court finds insufficient evidence to bind the matter over to Circuit, the case ends here.

The prosecution has the burden of showing that it was “more likely than not” that a felony was committed, and that the accused was the one who did it.

Most times, I do not advise “waiving the preliminary exam”, because it gives us a chance to commit the police and prosecutor’s other witnesses to a story that they cannot deviate from at time of trial. It also gives me a chance to discover a bit more about the prosecutor’s case.

Pre-trial – same features as in District Court

Motions – same features as in District Court

Trial – same features as in District Court

Pre-Sentence Report – – same features as in District Court

Sentencing – same features as in District Court, with an additional twist. Michigan used to have mandatory sentencing guidelines, which are no longer mandatory. However, these guidelines are used so widely, that they are still part of the background of a criminal felony sentencing. There is actually a scoring system that helps the Court determine the appropriate sentence, based on certain variables related to the charged crime, and based as well, on variables related to the defendant’s history. In other words, a “longer rap sheet” will likely work against the defendant, when it comes to sentencing in Circuit Court.

Most people are well aware that the 5^th Amendment to the US Constitution guarantees, among other things, a right to be free from having to testify against himself.

In addition to Miranda, discussed elsewhere on this site, there are a number of other cases, both expanding and limiting 5^th Amendment privileges

Griffin v California – judges/prosecutors cannot tell the jury to treat defendant’s choice not to testify as an admission of guilt

Fisher v US – the right against self-incrimination applies to testimony only, and not to the seizure of pre-existing documents

New York v Quarles – creates a public safety exception to this right, allowing police to ask urgent questions before giving Miranda warnings, if there is an immediate threat to the public.

HYTA

Michigan’s “Holmes Youthful Trainee Act”, or HYTA, is a legal status that lets young offenders avoid a permanent criminal record, with the successful completion of their terms of probation. HYTA status is available for offenses committed on or after the Defendant’s 18^th birthday, and before their 26^th birthday. The prosecutor’s consent is required if the defendant was 21 or older at the time of the offense. The defendant must plead guilty to the charge.

Certain crimes are not “HYTA-eligible”, however. HYTA does not include traffic offenses, major drug offenses, most criminal sexual conduct crimes, or crimes carrying a life sentence.

MCLA §771.1 (aka “771”)

This is technically a delay of sentencing that works like a probationary provision. The Defendant is on probation for up to one year, after which charges are either reduced or dismissed. The requirement is that a guilty plea “under 771” be entered, and that there be a finding that the “defendant is not likely again to engage in offensive or criminal conduct AND the public good does not require that the defendant suffer the penalty imposed by law”

Unlike HYTA, 771 is available to defendants of all ages.

An accused’s right to a speedy trial, is guaranteed by the US Constitution, the Michigan Constitution, by Michigan statute, MCLA §768.1, and by Michigan Court Rule 6.004.

Where state statutes do not specify a hard & fast deadline, the courts look at the standards developed under the 6^th Amendment, where a four-factor test has been developed by the US Supreme Court, based on:

Length of the delay

Reason for the delay

Did defendant request a fast trial date

Is defendant being prejudiced, as might be the case if he/she is incarcerated

The American Bar Association, which is not empowered to enact binding law, suggests professional targets for state and local courts:

90 days from the first court appearance for people held in jail before trial; or

180 days for people who are not jailed before trial, due to release on bail, or otherwise

The Burden

Burdens of proof are divided technically, into a “burden of production”, and a “burden of persuasion”. The burden of production is the duty to provide enough evidence to sustain a claim. That burden might shift, once a party has met its burden of production.

A simple example in a criminal context might be this: The prosecutor says that you committed the crime; the prosecutor had the initial burden of production, which she now shifted to you, to prove that you were not the one who committed the crime. You might be able to prove that you were not the criminal, say, by showing an alibi, or that you were physically incapable of committing the crime.

A burden of production is not the same as the “burden of persuasion”, which is the duty to convince the judge or jury (whoever decides the case; sometimes called the “trier of fact”) that the claim is true, based on a certain standard. The burden of persuasion never shifts; in criminal cases, that burden always remains with the prosecutor.

Standards of Proof

America got an object lesson in standards of proof, 30+ years ago, when OJ Simpson was on trial for murdering his wife, and a friend of hers. In the criminal trial, the prosecution could not meet the heavier criminal standard (discussed below ), while the civil attorneys filing a private lawsuit on behalf of the murder victims’ families, were able to meet the standard that applied to them, because it was a lower threshold of proof. Those proof standards are as follows:

Beyond Reasonable Doubt

Used in criminal cases like OJ’s murder case, it is the highest standard. The prosecution must prove that the defendant is guilty, such that there is no other reasonable logical explanation. In the Michigan Standard Jury Instructions, “proof beyond a reasonable doubt means that the jury is firmly convinced that the defendant is guilty. A reasonable doubt is a fair, honest doubt based on the evidence, or lack of evidence.

Preponderance of Evidence

This much easier standard of proof, was all that the families of OJ’s alleged victims needed to prove, e.g., that it was more likely than not the way things occurred (as alleged by the party with this burden of production/persuasion). This is the proof standard used in most civil cases, but is also used in some criminal contexts, such as a Preliminary Examination, discussed elsewhere on this site.

Clear & Convincing Evidence

This is a proof standard, somewhere in between “beyond reasonable doubt”, and “preponderance of evidence”. It is still a high standard requiring proof that a claim is substantially more likely to be true than false. This proof standard is rarely if ever, applicable in a criminal context.

Controlled Substance – Schedules and Penalties

I have attached a chart with an outline of Michigan drug crimes and penalties; you will find it here.

While marijuana became legal in Michigan, it is still illegal under federal law, and is in fact, classified as a Schedule 1 drug (meaning no current accepted medical use, and high abuse potential).

Purchasing marijuana is legal for persons 21 and older, showing identification, just like when buying alcohol. Some towns, villages and Townships have opted out of Michigan’s “Regulation & Taxation of Marijuana Act”, or MRTMA, MCLA §333.27951 et seq meaning that marijuana and marijuana products (flower, concentrates, edibles, and topical marijuana) still cannot be purchased in those locations.

Use of marijuana in public and in vehicles is not permitted.

Where legal, marijuana can be bought by an adult (21 & over), up to 2.5oz in quantity, per day. A person is limited to 15g of marijuana concentrate at one time. Direct sale or transfer of marijuana to a minor, or to a visibly intoxicated person, remains illegal (with regulations similar to “dram shop” rules in effect, under the same statute)

Adults aged 21 and older can also legally cultivate marijuana, but only up to 12 plants at home, and then for personal use only. Legally cultivated marijuana cannot be visible from the public, and must be stored in a locked place.

Finally, operation of a motor vehicle while under the influence of marijuana is illegal as an offense under MCLA §257.625 et seq; as legal as marijuana may be now, operating a motor vehicle while under its influence is still “impaired driving”.

Also, on a related subject, while marijuana use is legal, it will not help anyone with a revoked drivers’ license to get that license restored. Alcohol is also legal, and its continued use is allowed as a basis to deny the restoration of a revoked drivers’ license.

MCLA §333.7411 contains probationary provisions applicable to drug crimes. Typically, it can only be used one time during a person’s lifetime. To access these probationary terms, a person must plead guilty to the charged offense, “under 7411”.

Upon successful completion of the terms of the “7411” probation ordered by the court, the judge is required to dismiss the charges; that dismissal is not discretionary with the court. However, upon violation of one or more of those terms, the court may in its discretion, enter a finding of guilt, per the original plea.

Of course, the problem with “7411”, is that it is “one and done”; once used, it can never be used again. Therefore, it is best if there is another probationary provision that can be used, such as HYTA or MCLA §771.1, before resorting to “7411”

Under Michigan’s Habitual Offender Law, MCLA §769.10 & MCLA §769.11, status as a “habitual offender” is not a charge in and of itself, but is rather a sentencing enhancement available to prosecutors who provide ample notice to the defendant, of their intent to charge as a “habitual offender”

With one prior felony (“Habitual 2^nd”), the statutory maximum sentence on the new felony increases by 25%. In this example, with appropriate notice and compliance with the rules, a four year felony can result in a five year term.

With two prior felonies (“Habitual 3rd”), the statutory maximum sentence on the new felony increases by 50%. In this example, with appropriate notice and compliance with the rules, a four-year felony can result in a six-year term.

With three or more prior felonies (“Habitual 4th”), the statutory maximum sentence on the new felony can be doubled (i.e., increased by 100%. In this example, with appropriate notice and compliance with the rules, a four-year felony can result in a eight-year term. Also, the court may impose a life sentence, if the underlying new offense has a statutory maximum term of five or more years, or life.

There is no limit as to how far the court can “look back”, meaning no limit on how old an old prior felony can be, to enhance the defendant to “habitual status”.

Challenges to “Habitual Status”

The prosecutor’s notice of their intention to charge you as a habitual offender must be filed within 21 days of the arraignment, or within 21 days of the filing of the charging document, if the arraignment is waived. These deadlines are usually enforced quite strictly.

The actual court finding of habitual status is made after conviction by the jury, at or before the sentencing hearing. The defendant must file a motion explaining why the habitual status, or the notice filed by the prosecutor to pursue habitual status, was constitutionally, factually, or procedurally invalid.

The defendant bears the initial burden of establishing the ineligibility of the matter, for habitual status. After that showing is made, the burden of proof then shifts to the prosecution to prove the validity of the claim that defendant is a habitual offender.

The guidelines apply only to felonies, and not to misdemeanors. The outcome of using the guidelines, is a range of minimum sentences, from high to low, counted in months. It is scored on one of a number of different grids, that vary with the “offense class”, as defined by statute.

For example, drunk driving is considered a “Class E” offense under MCLA §777.66; there are other “Class E” offenses, and there are eight other offense classes, and to “score” the felony sentence range properly, the proper offense class grid must be used. All of the sentencing grids are determined by statute.

The minimum sentence is determined by looking at the intersection of the “Offense Variables” (OV), measuring the severity of the current crime, and the “Prior Record Variables” (PRV), which account for the past criminal history.

The guidelines determine minimum sentence only. Maximum sentences are determined by statute. Under MCLA §769.34, a minimum sentence cannot exceed two thirds (2/3) of the statutory maximum.

Since the 2015 Michigan Supreme Court case of People v Lockridge, these guidelines are only advisory, but they are so routinely used in criminal cases, that they will play a factor in your felony sentencing in Michigan. Judges may, for example, depart from these guidelines, as long as the departure is reasonable, and the specific reasons for the departure are stated on the record.

If the upper limit of a recommended minimum sentence is 18 months or less, the court is required to impose an intermediate sanction, such as probation, or incarceration in a local jail (v. state prison; felony prison sentences kick in at 12 months, and this provision is designed to provide some grace to the defendant).

“Straddle cells” – these are minimum sentence ranges where the lower end of the minimum sentence is 1 year or less, and the upper limit is more than 18 months. In these situations, judges are given wide sentencing discretion under the statute. The court may impose a prison sentence within the guideline range, an intermediate sanction (like probation), or a county jail term of up to 12 months.

There are basically two classes of expungements, or orders setting aside convictions.

Automatic Expungements – “Clean Slate”

The first category is that of “automatically expunged” offenses; this category was created in 2021 with Michigan’s Clean Slate law, MCLA §780.621g. those include both “major” and “minor” misdemeanors. An unlimited number of these “minor misdemeanors” are expunged automatically, while up to four “major misdemeanors” can be expunged in this manner. Up to two eligible felonies can be expunged automatically after 10 years.

In order to be eligible for automatic expungement, there must be no pending criminal charges, and the offenses must be eligible for expungement. For example, felonies carrying life sentences, most criminal sexual conduct and child abuse cases are not eligible for expungement. Similarly, traffic offenses causing injury or death cannot be expunged.

Private citizens cannot see expunged records, but they remain in the Law Enforcement Information Network (LEIN), to which only judges, law enforcement, and prosecutors have access, and then only while in the course of their regular work.

Application Based Expungements

These, of course, are conviction set-asides that remain non-automatic, even after the enactment of the “Clean Slate” law. Expungements are generally discussed, beginning at Chapter 780 of the Michigan Compiled Laws.

Up to three felonies, and an unlimited number of misdemeanors can be expunged by application, with a maximum of two assaultive crimes. These limits are “lifetime” meaning that no more than the two assaultive crimes and the three felonies can be expunged.

There must be compliance with applicable waiting periods. Specifically, there is a 3-year waiting period between conviction and expungement application, for minor misdemeanors.

A longer 5-year waiting period applies to serious misdemeanors, OWI-1^st (i.e., a first time drunk driving offense), or one felony.

Finally, there is a category for multiple felonies, subject to a 7-year waiting period.

Process:

We complete an application, I get your certified court records, you get me a set of fingerprints, and I file these documents with the court. The State of Michigan Attorney General, the State Police, and the local prosecutor all get served with copies of this paperwork. Each has a right to object to the conviction being set aside. Ultimately, there will be a hearing, at which time the judge will decide whether or not to grant the expungement request.