29/04: Michigan "7411" Drug Offense Diversion Law

MCL 333.7411 is a law was proposed to allow judges to use their discretion to provide a non-criminal sanction for first-time offenders who commit less serious drug crimes. People v Ware, 239 Mich App 437, 441, 608 NW2d 94 (2000). It is a law that can be used as a get out of jail free card for a person charged with certain drug offenses. If the candidate is eligible for application of the law to their case, under certain circumstances, the person can be discharged from probation and their case can be dismissed without a conviction entered on their criminal record.


The statute addresses the following issues: (1) probation where there is no previous conviction; (2) what happens if probation is violated; (3) how there can be a discharge from probation and dismissal of the case without any adjudication of guilt on the record; (4) what the record will look like if the agreement is completed successfully; (5) the effect of civil fine for first violation; (6) what the judge can order the defendant to do in order to complete the program; (7) that the failure to complete ordered instruction or program is a violation of probation; (8) screening and assessment; (9) participation in rehabilitative programs; (10) payment of costs; (11) failure to complete program as violation of probation.

Practically speaking what happens is that the defendant pleads guilty or is found guilty of a qualifying offense. The judge does not formally enter the judgment of guilt but rather defers the proceedings and places the defendant on probation. Once the conditions of the probation are met, the defendant is discharged from probation and the case is dismissed.

Under MCL 333.7411(1), a defendant is eligible for this drug diversion program if they are charged with:
- Possession of a controlled substance under MCL 333.7403(2)(a)(v) or MCL 333.7403(2)(b),(c), or (d), including possession of less than 25 grams of a schedule 1 or 2 controlled substance;
- Use of a controlled substance under MCL 333.7404; and
- Possession or use of an imitation controlled substance, under MCL 333.7341, for a second time.

Additionally, the defendant must have no prior convictions involving controlled substance offenses codified at MCL 333.7101 et seq. or offenses under equivalent laws of other states or the United States. As long as prior offenses do not include disqualifying controlled substance offenses, a defendant can still be considered for 7411 status. However, this 7411 get out of jail free card can only be used one time.

Application of this statute may not be right for a defendant who is unlikely to successfully complete all the terms of probation. The defendant will have to pay probation supervision fees and may have to participate in a drug treatment program. All costs of the drug treatment program must be paid by the defendant. Urine testing can be frequent and costly. If the defendant fails to comply with all conditions, they will be convicted and sentenced on the charge.

MCL 333.7411:

(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.


Comments

refadmin wrote:

Dear AngryAtTheCourts:

It is a misconception that all court appointed attorneys are not good attorneys. Many seasoned attorneys stay on the court appointed lists to do give back to the system that they have had so much success in. Have faith in your attorney.
14/10 11:36:07

AngryAtTheCourts wrote:

Thanks for your reply, I went to court today, a show cause hearing, my violations were failure to pay fines, failing to participate in counseling, and testing positive for THC. As of now though my tests are coming back clean, my fines are up to date, and I have a counseling session scheduled mid this month.
I plead not guilty so I could have some time to figure things out, I'm pretty sure I was illegally searched as well, the officer told me he was looking for a "white male in a red hoody who stole a purse" I was wearing a grey hoody myself, just decides they want to search me, I'm almost positive that was illegal, not to mention a male officer frisking my girlfriend I was walking with.
If you were willing to work pro bono, hahaha, I could use your help, but as it stands I guess I have to stick with a court appointed attorney. I just hope he can bring me justice... Not like he's getting paid, what would he care...
07/10 13:37:11

refadmin wrote:

Dear AngryAtTheCourts:

If your plea was conditioned upon application and adjudication under 7411 then the record is supposed to be nonpublic. Contact your attorney if you had one and if not contact the prosecutor's office. Send a well-written letter to them return receipt requested. Follow-up with phone calls. Also, though technically it should be unavailable for review except to certain people, request to review the criminal file. Look at the Plea Agreement to find out the exact terms. If you would like me to represent you in the process, please email me directly at lawref@lawrefs.com. Either way, let us know how it turns out.
02/10 19:49:18

AngryAtTheCourts wrote:

So the record is supposed to be nonpublic... But my record IS... What does this mean for me? Can this help me? Didn't they lie to me in word and text?
02/10 17:34:22

refadmin wrote:

Dear Mr. Hummel:

At the present time, your record would include the criminal charge but not a criminal conviction. If the charge is dismissed, the record becomes nonpublic and would only be disseminated to the entities identified above under the circumstances outlined above.
22/09 03:50:45

Craig Hummel wrote:

I am requesting to be discharged from 7411 probatio 1/1/2 monthe early. The PO Is supports it but status an MDOC statue states that you mus serve at least 12 month on the 7411 plea unless the jusge agrees to dismis early. I have completed all requirments of the probation and have paid all fines and supervision fees. I have a professional licensenad have to very good opportunitites for very good employment. With the 7411 I would not even be considered. One position is with the VA, will they have access to this information, and then use it againsist me for the position. the other positon requires an FBI back grounf check. I sure the FBI will have access to the info but due to the statue will they be able to disclose the information to the prospective employer. I am at the 2nd interview processs and nither organization have no idea about the 7411. . Can you give me some info if organization will be still able to access this info and use against individual for possiable employment. Thanks Craig
13/09 10:53:53

refadmin wrote:

Dear DCGirl:

You will have no conviction on your record. I have no information which would lead me to believe that you would have a problem since you will have no conviction and the records of your arrest are "nonpublic".
05/08 22:28:23

dcgirl wrote:

can u continue with your career in nursing after this
such as becoming a nurse or owning a nursing institution
05/08 20:24:37

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