Discharge and Dismissal of Drug Possession MCLA 333.7411
For first-time offenders, there may be a way to have the case dismissed pursuant to MCLA 333.7411. Although our attorneys will always fight first and foremost to have the charge dismissed on its own merits (i.e., lack of evidence, inappropriate means of gathering evidence, faulty witness testimony, etc.), this statute provides an attractive alternative in cases where the evidence against a person in a first-time drug offense is substantial.
A drug crime conviction can have devastating effects on a person’s life. This can include making it nearly impossible to land a good job, obtain stable housing, as well as a variety of other collateral consequences.
At Grabel & Associates, our attorneys regularly represent defendants who have been charged with serious drug crimes, including felonies and misdemeanors.
The statute, commonly referred to as “7411” by defense attorneys, judges and prosecutors, offers a remedy to defendants who have not previously convicted of another drug crime. A means to walk away with a clean criminal record; it is available to those who are charged with:
- Possession of a controlled substance (MCL 333.7403);
- Use of a controlled substance;
- Use or possession of an imitation controlled substance.
Imitation controlled substance (counterfeit narcotics) is included here because defendants may be accused of buying or selling fake drugs. It’s more common than you might think because a person transacting drugs on the street can never know for sure what they are really getting. In some cases, defendant will purchase what narcotics detectives refer to as a “burn bag.” It doesn’t contain any real narcotics, but it’s nonetheless illegal. Under the law in Michigan, and in many other jurisdictions, it is illegal to deliver or possess an imitation controlled substance.
It is not, however, available to those charged with more serious drug offenses as outlined in MCL 333.7401, such as:
- Drug delivery;
- Possession with intent to deliver a drug;
- Manufacturing a controlled substance.
If a defendant is granted a 7411 disposition, he or she is not convicted. Rather than a typical “sentence,” there is a period of probation.
While many defendants are charged with misdemeanor use, there are certain felony drug charges that are also eligible for treatment under 7411. This includes the following:
- Possession of ecstasy
- Possession of methamphetamine
- Possession of heroine
- Possession of drug analogues
- Possession of LSD
- Possession of marijuana
A drug analogue is generally a prescription medication that is listed in the United States Controlled Substances Act (USCSA) Act of 1970. This is the reason marijuana can be charged as a felony in addition to relevant state law as it listed as a Schedule I controlled substance.
Probation usually lasts one year, but the timeline can vary by case. The probation restrictions mirror those in most other criminal drug cases, in any other case and quite often includes:
- Seeking employment
- Keeping a job
- Obtaining a GED
- Going to rehabilitation or obtaining substance abuse treatment for drugs and/ or alcohol
- Taking random or regular drug testing
- Mental health treatment
In cases involving drug use, a defendant may also have mental health issues. Taking drugs may be a way of self-medicating. For this reason, there are many rehabilitation centers that specialize in what is known as dual diagnosis treatment that includes a mental health component.
People v Alemu
Don’t assume that just because you’ve been charged with a more serious drug offense, there is no chance you’ll be able to take advantage of a 7411 dismissal. It may indeed be possible for your attorney to negotiate a plea deal for a lower charge – one that will be eligible for this reprieve.
In People v Alemu, a 2015 case from the Michigan Court of Appeals, defendant was charged with possession with intent to deliver marijuana. He was arrested with a glass jar containing a large amount of marijuana, as well as sandwich bag full of marijuana and digital scales. He told officers that he was not selling drugs but giving it to his friends who were home from school for the winter holidays. He was offered a deal by the prosecutors to dismiss the felony possession with intent to deliver charge if he pleaded guilty to simple possession.
Defendant took this deal. His attorney asked the judge for a 7411 dismissal. Judge denied this request, ruling defendant was with possession with intent to deliver marijuana, and his story that he was only planning on sharing the drugs with friends was not credible.
Defendant appealed on grounds he was eligible and using the offense for which he did not plead was not proper. The appeals court agreed that this was an abuse of discretion and reversed and remanded the case for further proceedings consistent with the opinion.
While use or possession of drugs is illegal, drug crimes are also treated as a threat to public health. For this reason, the Michigan Department of Health and Human Services (MDHHS) keeps detailed statistics of the drug charges in various communities. The agency also works to promote community health and get people to help fight drug abuse.
If a sentence is granted under 7411, defendant may have to appear at the time of the successful complete of probation, or the court and prosecutors can simply run the defendant’s record through the criminal justice information system and verify that he or she has not picked up any new charges.
Once the case has been dismissed, there will be no public record of it. But it’s not entirely gone. Police will be able to run defendant’s record though the electronic database and will be able to see the case. The court will also be able to see the prior closed case in the event that the defendant is charged with a second or subsequent case.
As discussed above, this is a disposition that is only available to first-time offenders. A defendant who has been convicted of a second use or possession charge will not have this option. Remember, though: an arrest is not a conviction. There are often many avenues an experienced Michigan drug crimes defense attorney can do to help the defendant avoid a criminal conviction. This is possible even if the defendant has a lengthy record, depending on the facts of the case.
Contact Michigan defense lawyers at Grabel & Associates now. We serve Lansing, Ann Arbor, Grand Rapids and statewide.