Drug Charges

“HYTA is open to young people, between 17-24 years of age, as long as the charged crime does not involve a felony, major controlled substance offense, and most offenses under the Sex Offenders Registration Act.

Interestingly, it is also not available for traffic offenses, presumably to induce younger people to drive more safely.

Increasingly, I am having clients CALLING ME, about their recent drug possession arrests, and ASKING ME about “7411”.  I don’t have to tell them.  It’s out there.

So, what is “7411”, and why is that a good, or a bad option?

“7411”, refers to probation for drug arrests,   under  MCLA 333.7411, under which a plea or finding of guilt is deferred, subject to probationary terms and for a prescribed period of time, as outlined by the judge.  “Upon fulfillment of the terms and conditions, the court SHALL discharge the individual and dismiss the proceedings. Discharge and dismissal under this section SHALL be without adjudication of guilt and, except as otherwise provided by law, is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law..” 

I have added emphasis to the word, “SHALL”, because it makes mandatory the dismissal of the charges, and the effect is to NOT be an adjudication of guilt, which can be quite helpful down the road.  Obviously, the failure to comply with the probationary terms, results in imposition of sentence.

There are exceptions, to this apparent generosity.  Law enforcement and the courts still have access to the nonpublic record, even if universities, e.g., and MOST potential employers do not.  If you yourself are contemplating a career in law enforcement, or if child protective services has a reason to look at your record, they will see this nonpublic information.

So, how could “7411” ever be a bad option?

Under the terms of the statute, it can only be used once in a lifetime.  Everyone is genuine in saying, “this will never happen to me again, I promise!”  However, by the same token, none of us can predict the future.  Therefore, it is always best, if at all possible, to seek probation elsewhere, such as “HYTA” (for “Holmes Youthful Trainee Act”), and MCLA §771.1, also referred to as “771”.

HYTA is open to young people, between 17-24 years of age, as long as the charged crime does not involve a felony, major controlled substance offense, and most offenses under the Sex Offenders Registration Act.  Interestingly, it is also not available for traffic offenses, presumably to induce younger people to drive more safely. 

“771” seems to offer the greatest “safe harbor”.  As long as “…the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer.”  The statute is geared toward giving “…the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the defendant’s rehabilitation (e.g., such as participation in a drug treatment court, etc)…” The court retains jurisdiction to impose sentence at any time during the one year maximum time of probation, under this statute.  There are certain mandatory probation fees, that will be imposed, based on the defendant’s projected monthly income.

 The term, “probable cause”, comes right out of the words of the 4th Amendment to our US Constitution, which states as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The police do not need “probable cause” to stop you.  All they need is “reasonable suspicion”.  What is the difference? Frankly, the only difference is one of degree.  An officer’s suspicion might be reasonable, if the facts and circumstances are such that he/she believes that a crime was committed (or that you might possess a weapon that poses a threat to them).  Under those circumstances, not only can an officer stop you, but he/she can frisk you, as well.  In this case, Terry v Ohio, the US Supreme Court held that a pat-down can be done, pursuant to an officer’s “reasonable suspicion”, and that a weapon or other contraband can be seized without violating the 4^th Amendment. 

OK, so the 4^th Amendment is what sets forth the standard of probable cause, and the requirements of warrants, and the right to be secure from “unreasonable searches and seizures”.  So what then, is “probable cause”? 

It is not satisfying to say that it is more than mere “reasonable suspicion”, but that is as good as any.  In Brinegar v US, our US Supreme Court defined probable causes as “where the facts and circumstances within the police officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a person of reasonable caution, that a crime is being committed.” 

This somewhat squishy standard became even squishier, 34 years later, when the Supreme Court held in Illinois v Gates lowered the threshold of probable cause, by ruling that a “substantial chance” or even a “fair probability” of criminal activity could establish probable cause; it need not even be a better than even chance.  

Over the years, particularly since the 1970’s and up to the present day, the trend has been for the Courts to expand the definition of “reasonable suspicion” and to liberalize (i.e., for the benefit of police officers) the definition of “probable cause”, to allow ever greater intrusions into what had previously been areas of personal privacy.

What Is Legal

In 2018, Michigan voters legalized marijuana, in the “Michigan Regulation & Taxation of Marihuana Act”, or MRTMA.  Yes, the Michigan Legislature really spells “marijuana” as “marihuana”; throughout the statute books, as a matter of fact.

In any event, marijuana is legal, to the extent that Michigan law allows it, but you should know that marijuana is still illegal under federal law.  You should also know, if you don’t already, that airports are regulated heavily by the federal government, and your possession of marijuana in an airport, may subject you to federal criminal penalties, even if the airport is located in Michigan.

In Michigan, under MCLA §333.27955(1), possession of up to 2.5 ounces of marijuana outside one’s home, by someone over the age of 21, is legal; in-home possession is legal up to 10 ounces.  MCLA §333.27954(1)(i) makes it illegal to possess more than 2.5 ounces of marijuana at home, unless the amount is excess of 2.5 ounces is kept under lock/key, or other security devices.  Finally, the new Michigan marijuana law allows up to 12 plants to be cultivated, within one’s home at any one time.

Transfer of marijuana from one person to another, has also been made legal by the new law, as long as:

1. There is no more than 2.5 ounces involved;
2. There is no form of renumeration, or compensation made for the transfer
3. The transfer is not made to a person under the age of 21; and
4. The transfer of marijuana is not advertised or promoted to the public.

MCLA §333.27955(2), makes use (as opposed to possession) legal, again, for persons over the age of 21, and subject to the quantity limitations.

The specific language in Section 1 and Section 2 of the statute is interesting, in that it indicates explicitly, that otherwise lawful use or possession:

• “….is not unlawful..
• Is not an offense
• Is not grounds for seizing or forfeiting property
• Is not grounds for arrest, prosecution, or penalty in any manner, and
• Is not grounds to deny any other right or privilege…”

This will make for interesting case law and litigation, going forward, in the event say, a police agency tries to use otherwise lawful possession of marijuana, as probable cause for arrest, prosecution, search or seizure.  As well, the broad language indicating that otherwise lawful possession, “is not grounds to deny any other right or privilege…”, may well find application in other areas, as long as they involve a “right or privilege”.

MCLA §333.27954, the prohibitive statute in the MRTMA, indicates that it is not to be construed/understood to limit the rights created in the “Michigan Medical Marihuana Act”, MCLA §333.26421, (which goes to MCLA §333.26430) other laws allowing for the regulation of marihuana for medical use; it also does not apply to the “Medical Marihuana Facilities Licensing Act” or the related laws, permitting the licensing of medical marijuana facilities.  In plain English, medical marijuana facilities are subject to different rules.

While possession and use of marijuana are made legal by MCLA §333.27955, nothing in that law requires an employer to permit employees to show up to the job, under the influence of marijuana.  Employers are free to discipline employees for use of marijuana, in violation of workplace drug policies, and indeed, they are free to fire, or to refrain from hiring someone for marijuana use, no matter how legal it may now be to use/possess marijuana.

Finally, the possession of marijuana, made legal by the MRTMA, shall no longer be grounds for denial of custody or visitation, unless that “person’s behavior is such that it creates an unreasonable danger to the minor, that can be clearly articulated and substantiated.”  Therefore, the mere possession of 10 ounces or less, within the home, should not be enough, by itself, to deny someone custody or visitation with their children.  That may be more the purview of a family law specialist, and we will gladly help you find someone who can definitively answer these questions.

The MRTMA has explicit provisions for the regulation and taxation of persons who either want to be involved in the business of selling legal marijuana, or want to legally transfer it to other persons.  For now, this website and The Frank Law Firm, PC do not handle marijuana business issues, but we can certainly help direct you to qualified marijuana business counsel, if that is what you need.

Any further questions?  Give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com

Can a criminal history, going back far enough in time, be wiped out? Many times, folks lived life differently in the past, than they do now; the need to work, support a family, pursue educational opportunities, etc, require that a criminal history be “buried” as much as the law will allow.  Can this be done?

Traditional Michigan Expungements

Yes and no.  Under Michigan law, “expungement” merely makes a formerly public adult criminal conviction record, nonpublic.  As far as the criminal justice system is concerned, you were still convicted of the crime; the only difference, is that after the conviction is “expunged”, it will not be visible to persons/entities outside the criminal justice system.  Who does that include? Potential employers, educational institutions, and lawyers like me, who are not employed by Prosecutors’ offices.  I am informed that Federal Immigration/Customs authorities will continue to have access to this information.

Expungements are governed by statute, specifically MCLA §780.621, which requires eligible persons to apply to the court where the conviction was entered.  If the conviction was out-of-state, you must go there (if you are eligible for expungement at all, in that other state); if your conviction was in a Michigan court far away, you must go there.

Who is eligible?

1. A person who has at least five years since the latest of the following

• Imposition of sentence;
• Completion of probation;
• Discharge from parole;
• Completion of any term of imprisonment

2. A person convicted of no more than one felony, AND no more than 2 misdemeanors, can petition the convicting court to set aside the felony;
3. A person with no more than two misdemeanor offenses, and no other felony offenses, may ask the convicting court to set aside one or both of the misdemeanor convictions;
4. A person convicted of 4^th degree criminal sexual conduct under MCLA §750.520e, provided that:

• The person who committed the offense is not older than 21 years of age;
• The conviction predated January 12, 2015;
• The person who committed the offense has not been convicted of another offense, other than two “minor offenses”, defined as
• Offenses with maximum imprisonment time not exceeding 90 days;
• The maximum fine is no more than $1,000.00

New “Clean Slate” Legislation

New legislation passed into law in Michigan, should start making the process of expungements easier, and in some cases, starting in April 2023, automatic. Specifically:

1. Beginning in 2023, creating an automatic process for expunging eligible misdemeanors after seven years, and eligible non-assault felonies after 10 years;
2. Expanding the number and revising the types of felonies and misdemeanors eligible to be set aside by application (effective April 2021);
3. Revising the waiting periods before being eligible for expungement;
4. Treating multiple felonies or misdemeanor offenses arising from the same transaction as a single felony or misdemeanor conviction, provided that the offenses happened within 24 hours of one another, and do not involve assault, possession/use of a dangerous weapon, or any other crime carry a penalty of 10 years or more in prison;
5. Expanding the eligibility for expungement of various traffic offenses; paragraph on the person to petition to set aside one or more marijuana offenses if the offense would not have been a crime, if committed after the use of recreational marijuana by adults became legal in Michigan

Do you have questions regarding your eligibility for expungement of a past criminal offense? Give Jon Frank a call at (586) 727-1900, or email at jon@jonfranklaw.com

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