Michigan Criminal Defense Attorney - Outlining Diversion (or Deferral) Statutes - Josh Jones - July 17, 2013

1. Domestic Violence Cases, MCL 769.4a


2. Controlled Substance Cases MCL 333.7411 “7411″


3. Delayed Sentencing MCL 771.1


4. Holmes Youthful Trainee Act (HYTA) MCL 762.11


5. Minor in Possession of Alcohol MCL 436.1703 (3)

1. DOMESTIC VIOLENCE CASES

MCL 769.4a authorizes a court, without entering a judgment of guilt and with the consent of the accused and of the prosecuting attorney in consultation with the victim, to defer further proceedings in an assault and battery case when an individual who has not been convicted previously of an assaultive crime pleads guilty to, or is found guilty of, assault and battery under MCL 750.81 AND 81A. The victim of the assault must be the offender’s spouse or former spouse, an individual who has a child in common with the offender, an individual who has or has had a dating relationship with the offender, or an individual residing in the same household as the offender. THIS DEFERRAL can be utilized only if the accused has no prior assaultive conviction. For law enforcement purposes, although a judgment of guilt is not entered, the arrest and the disposition by utilization of the deferral statue will appear on the criminal record of the defendant.

2. CONTROLLED SUBSTANCE CASES

Another deferral statue that may be available to a defendant is MCL 333.7411, “7411.” This law allows for an individual who has been charged with a non-major drug offense to walk away without a drug conviction after successful completion of the court’s sentence. Non-major drug offenses are usually simple possession of controlled substance offenses for marijuana, cocaine, heroin, or ecstasy. Major offenses not “7411″ eligible are offenses that involve delivery or manufacture of drugs, including possession with intent to deliver and maintaining a drug house.

3. DELAYED SENTENCING

This is not technically a deferral, although MCL 771.1 authorizes a court, without entering a judgment of guilt, to delay sentencing for no more than one year in all prosecutions for felonies, misdemeanors, or ordinance violations other than murder, treason, criminal sexual conduct in the first or third degree, armed robbery, or major controlled substances offenses. This deferral does not require the prior consent of the accused, the prosecutor, or the victim.

4. HOLMES YOUTHFUL TRAINEE ACT (HYTA)

MCL 762.11, is another deferral law that has specific age restrictions. To receive HYTA consideration, a defendant must have committed the crime charged between the ages of 17 and 21. HYTA is not allowed for a number of offenses, including all offenses for which the penalty is life, all traffic offenses, and most criminal sexual conduct offenses. MCL 762.11 (2), (3). As with the other deferral statues, HYTA will allow for a non-public record of the offense. Additionally, you must satisfy all the sentence requirements of the court.

5. MINOR IN POSSESSION OF ALCOHOL (MIP)

MCL 436.1703(3) authorizes a court, after fulfillment of the terms and conditions of probation, to discharge the defendant and dismiss the proceedings. To qualify for this deferral the defendant must not have been previously been convicted of or received a juvenile adjudication for being a minor who purchased or attempted to purchase alcoholic liquor, consumed or attempted to consume alcoholic liquor, possessed or attempted to possess alcoholic liquor, or had any bodily alcoholic content.

PLEASE DO NOT RELY upon any of the information contained in this article when trying to represent yourself. You should always consult with an attorney before relying upon any written advice, article, blog etc.

Controlled Substance Conviction Consequences - Part 2 - Michigan Criminal & Marihuana Lawyer - Josh Jones - ALL Felonies & Misdemeanors

Part II – Collateral Consequences For Controlled Substance Convictions: Housing & Public Benefits

When it comes to controlled substance (or drug) charges here in the State of Michigan, the legislature has drafted a strict set of consequences to inflict onto those convicted of the various types of crimes. Not only are there fines, possible jail time, possible drivers’ license sanctions, and other requirements when convicted of a drug crime, but there are also possible consequences that involve an individual’s housing or public benefits.

The following areas involve possible consequences, and each provides a brief outline of those consequences.

1.    Housing

a.     Private landlords

Private landlords may evict an individual for criminal activity related to the tenancy, which is common in drug cases. Furthermore, private landlords may also deny housing because of a criminal record. A lease or agreement between two individuals is a contract, and thus the terms in that contract are binding, which usually involves provisions about drug activity, use or the like.

b.     Conventional public housing and section 8 subsidies:

Admission to programs: Relevant Authority: 24 CFR Subpart B - Admission

There is a mandatory denial of housing for individuals convicted of methamphetamine production. There is a presumption for denial is an individual has been convicted of a drug crime, which includes a family member engaging in illegal drug use. Moreover, there is a discretionary denial for any drug-related criminal activity, and thus an applicant may be required to exclude a family member who has participated in or has been culpable for criminal, alcohol, or drug-related activity.

Termination or eviction: Relevant Authority: 42 USC 1437d; 24 CFR 966.4

Mandatory termination is required for individuals convicted of methamphetamine production. However, there is discretionary termination for individuals engaged in illegal drug use. Discretionary termination is present when a tenant, a member of the tenant’s household, or a guest engages in any drug-related criminal activity on or off the premises or if any other person under the tenant’s control engages in any drug-related activity on the premises. Public Housing Authorities have the authority to evict individuals for drug-related criminal activity even if the tenant did not know, could not foresee, or could not control the behavior of other occupants or guests.

2.     Public benefits: Relevant Authority: 21 USC 862a BEM 203

Permanent revocation for an individual convicted of a drug-related felony, and thus he or she cannot receive federal cash assistance or food stamps during his or her lifetime. States are allowed to opt into or out-of that provision. In Michigan, individuals with one prior felony drug conviction will remain eligible for benefits; however, those with more than one felony drug conviction, which occurred after 1996, are not. However certain benefits will be excluded from the ban, which include, but are not limited to, emergency medical services, certain public health benefits, drug treatment programs, Medicaid, Social Security disability, and supplemental Social Security income. If considering moving to another state and having prior felony drug convictions research is advised because other states do enforce the ban described above.

DO NOT RELY ON THESE LEGAL OPINIONS AND OBSERVATIONS WHEN REPRESENTING YOURSELF IN COURT. THESE ARTICLES ARE NOT MEANT TO COMPENSATE OR EFFECUATE LEGAL REPRESENTATION. YOU SHOULD AND MUST CONTACT AN ATTORNEY AND DISCUSS WITH HIM OR HER THE CONSEQUENCES OF ANY AND ALL IDEAS, STATEMENTS, OPINIONS, EXPRESSIONS OR OTHERWISE STATED ON THIS SITE. HOPE TO SPEAK WITH YOU SOON.

Controlled Substance Conviction Consequences - Part 1 - Michigan Criminal & Marihuana Attorney - Josh Jones - ALL Felonies & Misdemeanors

Part I – Collateral Consequences For Controlled Substance Convictions: Employment & Student Loans

When it comes to controlled substance (or drug) charges here in the State of Michigan, the legislature has drafted a strict set of consequences to inflict onto those convicted of these various types of crimes, such as marihuana, prescription drugs, cocaine, meth, etc. Not only are there fines, possible jail time, possible drivers’ license sanctions, and other requirements when convicted of a drug crime, but there are also possible consequences that involve an individual’s career, financial aid or other areas of an individual's life (which will be discussed in Part II - Collateral Consequences For Controlled Substance Convictions: Housing & Public Benefits).

The following areas involve possible consequences, and each provides a brief outline of those consequences.

1.     Employment

Health professionals: Relevant Authority: MCL §333.16221(b); Mich. Admin. Code R. 338.3145. A summary suspension of the license will occur if an individual is convicted of a misdemeanor controlled substance crimes involving delivery, possession or use. Individuals previously convicted of a controlled substance crime and currently under a sentence for that conviction cannot work as pharmacists or in related jobs. Moreover, an individual’s controlled substance license would be invalid if suspended, revoked or denied because of a drug crime conviction.

Long-Term Care (adult foster care facilities, nursing homes, hospices, etc.): Relevant Authority: 42 USC 1320a-7; MCL § 330.1134a, MCL § 333.20173a, MCL § 333.20173b. If an individual is convicted of a felony relating to manufacturing, distributing, prescribing, or dispensing of a controlled substance after August 21, 1996, then a lifetime ban in the field will attach to that individual. An individual is banned for five years after the conviction for certain misdemeanor controlled substance offenses, which are listed in the statute, and involve the creation, delivery, possession, or use of a controlled substance. An individual under the age of 18 generally receives a one-year suspension from the date of conviction for most misdemeanor controlled substance offenses. 

Private Security, Security Guard, Security Alarm Contractor: Relevant Authority: MCL § 338.1056(1)(e), MCL § 338.1060(1)(c), MCL § 338.1067. An individual is not allowed to have a conviction involving a controlled substance within the last five years, which includes felonies and/or misdemeanors. Therefore, a 5-year gap rule applies.

2. Federal student loans: Relevant Authority: 20 USC 1091(r)(1) IRC 25A(b)(2)(D). The Federal law suspends an individual’s eligibility for any grants, loans, or work assistance when he or she is convicted (either by state or federal) of a controlled substance that involves the possession or sale of a controlled substance and while receiving student aid. Furthermore, Federal law denies the hope tax credit to a student and his or her family if he or she has a prior felony drug conviction. In possession cases, the period of suspension begins on the date of conviction and will last one-year. There is an enhanced suspension of two years for a second possession offense and complete revocation for a third offense. A delivery drug conviction brings about a two-year suspension for the first conviction and complete revocation for a second conviction. However, there are waiver or rehabilitation provisions that are available to some individuals.

Please stay tuned and look for PartII - Collateral Consequences For Controlled Substance Convictions: Housing & Public Benefits. 

DO NOT RELY ON THESE LEGAL OPINIONS AND OBSERVATIONS WHEN REPRESENTING YOURSELF IN COURT. THESE ARTICLES ARE NOT MEANT TO COMPENSATE OR EFFECUATE LEGAL REPRESENTATION. YOU SHOULD AND MUST CONTACT AN ATTORNEY AND DISCUSS WITH HIM OR HER THE CONSEQUENCES OF ANY AND ALL IDEAS, STATEMENTS, OPINIONS, EXPRESSIONS OR OTHERWISE STATED ON THIS SITE. HOPE TO SPEAK WITH YOU SOON.

Disorderly Person - Criminal Misdemeanors - Michigan Criminal Lawyer Josh Jones - Handling ALL MISDEMEANORS & FELONIES

Disorderly Persons - Criminal Misdemeanors

Some acts that take place every day (the asking for money or loitering is what currently comes to mind) can lead to criminal charges when the cops are in view, are called, or just having a rough day. Imagine that you’re broke, homeless and have no place to go. What do you? You sit around, or walk from place to place, and either pick up money, work or ask for it in order to survive. If you choose the option to ask for money then you have committed a crime.

Here in the State of Michigan the following acts, pursuant to MCL § 750.167, can and will bring about criminal charges:

(a) A person of sufficient ability who refuses or neglects to support his or her family.

(b) A common prostitute.

(c) A window peeper.

(d) A person who engages in an illegal occupation or business.

(e) A person who is intoxicated in a public place and who is either endangering directly the safety of another person or of property or is acting in a manner that causes a public disturbance.

(f) A person who is engaged in indecent or obscene conduct in a public place.

(g) A vagrant.

(h) A person found begging in a public place.

(i) A person found loitering in a house of ill fame or prostitution or place where prostitution or lewdness is practiced, encouraged, or allowed.

(j) A person who knowingly loiters in or about a place where an illegal occupation or business is being conducted.

(k) A person who loiters in or about a police station, police headquarters building, county jail, hospital, court building, or other public building or place for the purpose of soliciting employment of legal services or the services of sureties upon criminal recognizances.

(l) A person who is found jostling or roughly crowding people unnecessarily in a public place.

If an individual commits one of the acts listed under MCL § 750.167 he or she will be charged as a disorderly person. If convicted as a disorderly person the individual will receive a misdemeanor on his or her record and receive up to 90 days in jail and/or a $500.00 fine.

Moreover, an individual found to be intoxicated or drunk while hunting with a firearm will also be considered a disorderly person. This section of the statute indicates that a firearm or other weapon used in conjunction with a valid hunting license is required to be prosecuted under that particular section of disorderly person. If convicted, the person will lose said weapon and will be unable to obtain a hunting license for 3 years from the date of conviction. A conviction will result in a misdemeanor and/or a possible fine.

PLEASE DO NOT RELY ON THESE LEGAL OPINIONS AND OBSERVATIONS WHEN REPRESENTING YOURSELF IN COURT. THESE ARTICLES ARE NOT MEANT TO COMPENSATE OR EFFECUATE LEGAL REPRESENTATION. YOU SHOULD AND MUST CONTACT AN ATTORNEY AND DISCUSS WITH HIM OR HER THE CONSEQUENCES OF ANY AND ALL IDEAS, STATEMENTS, OPINIONS, EXPRESSIONS OR OTHERWISE STATED ON THIS SITE. HOPE TO SPEAK WITH YOU SOON. 

Holmes Youthful Trainee Act (aka HYTA) - Explaining The Law - Michigan Criminal Defense Lawyer - Josh Jones

What is HYTA?

Holmes Youthful Trainee Act, HYTA, is a deferral statue that has specific age restrictions, yet is not allowed for a number of offenses, including all offenses for which the penalty is life, all traffic offenses, and most criminal sexual conduct offenses. To receive consideration under HYTA, a defendant must have committed the crime charged between the ages of 17 and 21.

If, you are 21 years of age at the time the crime was committed you will not be eligible to apply for HYTA; therefore, you must be 17, 18, 19, or 20 years old at the time of the commission of the crime. However, if you are 23 years of age at the time you are brought to court you may be eligible to apply for HYTA consideration, if at the time the crime was committed you were 17 years, and under 21 years.

Moreover, HYTA does not prevent a Judge from sending you to jail.

WHAT IS THE BENEFIT OF ENTERING A PLEA AND RECEIVING HYTA?

Answer: Once you enter a plea of guilty under HYTA, there will be no public record of the conviction. The court will maintain a record, yet the general public will not have access to the information.

Important Note: If you do not satisfy the terms and conditions of probation you could be violated, at which time your HYTA status could be revoked. If revoked the conviction(s) will be entered onto your criminal history.