A controlled substance conviction in Michigan is no laughing matter. The penalties are severe and include driver's license suspensions, probation, fines and incarceration in jail or prison. Fortunately, Michigan law provides a break for certain first-time drug offenses to potentially avoid a criminal conviction. The provision is codified in the statute under MCL 333.7411 (hence, the "7411" deferral). However, it is not available to all persons or all drug crimes.
To be eligible, an individual must meet the following requirements:
- The individual must not have any prior conviction for any violation under Article 7 of Michigan's Public Health Code or under any statute of the United States or of any state relating to narcotic drugs, coca leaves, marijuana, depressant or hallucinogenic drugs. MCL 333.7411(1).
- The individual must plead guilty or be found guilty of one of the following offenses (whether or not it is a misdemeanor or a felony):
- Possession of a controlled substance classified in Schedule 1, 2, 3, 4 or 5, or a controlled substance analogue under MCL 333.7403(2)(a)(v), MCL 333.7403(2)(b), MCL 333.7403(2)(c) or MCL 333.7403(2)(d).
- Use of a controlled substance classified in Schedule 1, 2, 3, 4 or 5, or a controlled substance analogue under MCL 333.7404.
- Possession of an imitation controlled substance described in MCL 333.7341 for a second time.
- The individual must consent to the deferral. MCL 333.7411(1).
The "7411" deferral is not available for convictions relating to the delivery or manufacture of controlled substances, or for maintaining a drug house or a drug vehicle. It is only available for findings of guilt, so the individual cannot use a nolo contendre ("no contest") plea. If the individual meets all of the requirements under MCL 333.7411(1), then the trial court, without entering a judgment of guilt, may delay further proceedings and place the individual on probation under terms and conditions allowed under the law, including participation in a drug treatment court. The individual will be required to pay a probation supervision fee.
If the individual completes all the terms and conditions of probation, then the court will discharge the defendant and dismiss the proceedings against him. The adjudication of guilt is set aside and a criminal conviction will not enter on the individual's criminal record. The controlled substance offense that was dismissed under MCL 333.7411 will not count for enhancing penalties for future criminal offenses on the basis of being a prior conviction. However, an individual may only receive ONE discharge and dismissal under "7411" during his or her life. Here are other aspects of the benefits conferred by a "7411" deferral:
- People v James, 267 Mich App 675; 705 NW2d 724 (2005) - The Michigan Court of Appeals held that a controlled substance offense discharged and dismissed cannot be scored as a prior convictions for purposes of Michigan's Sentencing Guidelines calculations. It will be treated for scoring purposes as if it doesn't exist which will likely put the offender in a lower scoring grid and reduce exposure to a lengthier jail or prison sentence.
- Carr v Midland County Concealed Weapons Licensing Bd., 259 Mich App 428; 674 NW2d 709 (2003) - The Michigan Court of Appeals held that a person who was charged with a drug felony and successfully completed "7411" probation for that offense is NOT considered a convicted felon for the purposes of obtaining a concealed pistol license.
- MCL 780.621(2)(d) - For the purposes of determining eligibility under Michigan's expungement statute, a drug felony or misdemeanor that is successfully discharged and dismissed under MCL 333.7411 is counted as a misdemeanor.
If the individual violates any of the terms and conditions of probation, then the court can proceed to sentencing on the original offense and impose a penalty allowed under the law for the committed offense. The court may also revoke the "7411" status and a criminal conviction can enter on the individual's criminal record. It is worth noting that the court does not have to revoke "7411" after a probation violation, but the defendant would really have to convince the judge that it was a minor slip-up that doesn't justify such action.
If the individual is successfully discharged and dismissed from "7411" probation, the arrest, court proceedings and disposition of the charge become a nonpublic record pursuant to MCL 333.7411(3) that is only accessible for limited purposes. However, according to People v Benjamin, 283 Mich App 526 (2009), a "7411" dismissal is not the same as a "not guilty" finding so the individual is not entitled to the destruction of his or her fingerprints and arrest card.
The prosecutor does not have to agree for the court to grant "7411" status. However, first-time offenders shouldn't assume that the court will hand out deferrals like candy. The judge has to be convinced that the individual made a one-time mistake that won't happen again. The individual shouldn't expect this break if her or she continues to test positive on drug tests, engage in criminal behavior or simply gives the court an impression that this matter isn't taken seriously. A skilled criminal defense attorney can help you negotiate for and present the best case to the court so that the changes of a deferral increase significantly. Avoid missteps towards getting this once-in-a-lifetime opportunity.
If you or a loved one are charged with a controlled substance offense or any other crime, do not hesitate to contact the skilled criminal defense lawyers at Kershaw, Vititoe & Jedinak PLC.