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.

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. 

Domestic Violence Outline - Michigan Criminal Defense Lawyer - Josh Jones - ALL FELONIES & MISDEMEANORS

Outlining Michigan's Domestic Violence Statute

Assaultive crimes vary substantially here in the State of Michigan, meaning there are multiple classes or categories of assaultive crimes. The basic definition of an assaultive crime begins with an assault. An assault is simply the unlawful and intentional threat of bodily harm to another attached with the ability to carry out the act. Moreover, the victim needs to recognize the threat of his or her “attacker.” The more common assaultive crime attaches to it another element or piece to the definition of assault, which is known as battery.  Battery is a willful and intentional contact (or actual contact made) with the victim, which is made against the victim’s freewill.  Therefore, an assault is an attempted assault and battery (or battery).

Within the umbrella that is assaultive crimes lies the crime known as domestic violence of assault against a person in a dating relationship with the defendant.

The term domestic violence, as mentioned above, falls under the statutory definition of a “dating relationship.” If the individual committing an assault or assault and battery on his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of the same household then he or she is in a “dating relationship.” See MCL § 750.81a(3).

If convicted an individual faces a 1-year misdemeanor and/or $1,000.00 fine. Those convicted of one or more assaults will face a 2-year felony with a possible $2,500.00 fine.  Any subsequent conviction that is counted for a domestic violence defendant will include other assaultive crimes. It is imperative, if not essential, to contact a criminal defense attorney when an individual faces a prior conviction or multiple prior convictions involving domestic violence and/or other assaultive crimes. 

There is also a diversion program for first-time offenders convicted of or who plea guilty to a domestic violence charge. This individual can receive an automatic expungement of the charge upon successful completion of probation and its terms. Moreover, in order to qualify for the diversion program the individual must not have been convicted of a prior assaultive crime.

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.

Minor Amnesty Law - MIP Protections - Michigan Criminal Lawyer - Josh Jones - ALL FELONIES & MISDEMEANORS

Minor Amnesty Law – Protections For Some Minors Who Come Forward

Last year, in June 2012, the State of Michigan modified the Michigan Liquor Control Code (aka MLCC) to include a new exemption for certain individuals suffering from alcohol poisoning. This exemption applies to a minor who purchases, consumes or possesses alcohol. See MCL § 436.1703(10). The individual minor must:

- Voluntarily present himself or herself to a health facility or agency for treatment or observation, including examination and treatment for any condition arising from criminal sexual conduct committed against the minor; 

- Accompanies an individual who has consumed alcohol and who presents himself or herself to a health care facility for treatment or observation; or

- Initiates contact with a peace officer or emergency medical services personnel for the purpose of obtaining medical assistance for a legitimate health care concern.

Yes, you have read the correct passages correctly and they are cited correctly. The new Minor Amnesty law now protects minors from fear of being criminally prosecuted for MIP related issues if the minor is seeking medical or emergency assistance because of alcohol use, and, inevitably charged with possession, use or purchasing alcohol.

This legislation, even though it does not recuse MIPs outright; it does provide individual minors who become ill, medically complicated, or make contact for assistance for those individuals ill or medically complicated will be protected.

The purpose of the Amendment seems to be clear. It provides individuals with protections, meaning less people will be put in dangerous situations when alcohol has severely affected them. People want minors to feel safe about coming forward when something serious has happened, and things like alcohol poisoning is a serious matter. Know the law, know your rights, and always lawyer-up. Contact the Law Office of Josh Jones today for your free consultation. 

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 

Possession of Marijuana - 7411 & Diversion - Michigan Criminal Defense Attorney Josh Jones

MCLA 333.7411 POSSESSION OF MARIJUANA

PUBLIC HEALTH CODE (EXCERPT) 
Act 368 of 1978

333.7411 Probation of individual with no previous conviction; entering adjudication of guilt upon violation of probation; discharge and dismissal without adjudication of guilt; nonpublic record of arrest and discharge and dismissal; effect of civil fine for first violation; requiring individual to attend course of instruction or rehabilitation program; failure to complete instruction or program as violation of probation; screening and assessment; participation in rehabilitative programs; payment of costs; failure to complete program as violation of probation.

Sec. 7411.

(1) When an individual who has not previously been convicted of an offense under this article or under any statute of the United States or of any state relating to narcotic drugs, coca leaves, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled substance under section 7403(2)(a)(v), 7403(2)(b), (c), or (d), or of use of a controlled substance under section 7404, or possession or use of an imitation controlled substance under section 7341 for a second time, the court, without entering a judgment of guilt with the consent of the accused, may defer further proceedings and place the individual on probation upon terms and conditions that shall include, but are not limited to, payment of a probation supervision fee as prescribed in section 3c of chapter XI of the code of criminal procedure, 1927 PA 175, MCL 771.3c. The terms and conditions of probation may include participation in a drug treatment court under chapter 10A of the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. 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 provided in subsection (2)(b), is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under section 7413. There may be only 1 discharge and dismissal under this section as to an individual.

(2) The records and identifications division of the department of state police shall retain a nonpublic record of an arrest and discharge or dismissal under this section. This record shall be furnished to any or all of the following:

(a) To a court, police agency, or office of a prosecuting attorney upon request for the purpose of showing that a defendant in a criminal action involving the possession or use of a controlled substance, or an imitation controlled substance as defined in section 7341, covered in this article has already once utilized this section.

(b) To a court, police agency, or prosecutor upon request for the purpose of determining whether the defendant in a criminal action is eligible for discharge and dismissal of proceedings by a drug treatment court under section 1076(4) of the revised judicature act of 1961, 1961 PA 236, MCL 600.1076.

(c) To the state department of corrections, a law enforcement agency, a court, or the office of a prosecuting attorney upon request of the department, law enforcement agency, court, or office of a prosecuting attorney, subject to all of the following conditions:

(i) At the time of the request, the individual is an employee of the department, law enforcement agency, court, or office of prosecuting attorney or an applicant for employment with the department, law enforcement agency, court, or office of prosecuting attorney.

(ii) If the individual is an employee of the department, law enforcement agency, court, or prosecuting attorney, the date on which the court placed the individual on probation occurred after March 25, 2002.

(iii) The record shall be used by the department of corrections, law enforcement agency, court, or prosecuting attorney only to determine whether an employee has violated his or her conditions of employment or whether an applicant meets criteria for employment.

(3) For purposes of this section, a person subjected to a civil fine for a first violation of section 7341(4) shall not be considered to have previously been convicted of an offense under this article.

(4) Except as provided in subsection (5), if an individual is convicted of a violation of this article, other than a violation of section 7401(2)(a)(i) to (iv) or section 7403(2)(a)(i) to (iv), the court as part of the sentence, during the period of confinement or the period of probation, or both, may require the individual to attend a course of instruction or rehabilitation program approved by the department on the medical, psychological, and social effects of the misuse of drugs. The court may order the individual to pay a fee, as approved by the director, for the instruction or program. Failure to complete the instruction or program shall be considered a violation of the terms of probation.

(5) If an individual is convicted of a second violation of section 7341(4), before imposing sentence under subsection (1), the court shall order the person to undergo screening and assessment by a person or agency designated by the office of substance abuse services, to determine whether the person is likely to benefit from rehabilitative services, including alcohol or drug education and alcohol or drug treatment programs. As part of the sentence imposed under subsection (1), the court may order the person to participate in and successfully complete 1 or more appropriate rehabilitative programs. The person shall pay for the costs of the screening, assessment, and rehabilitative services. Failure to complete a program shall be considered a violation of the terms of the probation.

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.