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.

Michigan Criminal Defense Attorney - Controlled Substances - Section 7411 Delay

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.