7411 Drug Deferral
A controlled substance or drug conviction can have a devastating affect on your life. Simply possessing some controlled substances can result in felony conviction with a maximum sentence of up to 10 years. In addition to the direct consequences of a drug conviction, namely, the possibility of a jail sentence, probation, fines/costs, simple drug possession charges (even misdemeanors) can carry serious collateral consequences such as:
- the suspension/restriction of your driving privileges;
- loss of eligibility for student loans;
- denial of mortgages or housing/rental availability;
- loss of employment;
- being denied entry into foreign countries; or
- your immigration status.
Many of our clients charged with controlled substance offenses are first time offenders with no prior criminal record. For these clients, often, their number one concern is keeping their criminal record clean so that a one-time error in judgment that does not follow them around for the rest of their lives.
Fortunately, there is a provision of the Michigan Controlled Substances Act found at MCL § 333.7411, commonly referred to as a “74-11” that allows persons charged for the first time with use or possession of marijuana, analogues, or other controlled substances such as cocaine or heroin to avoid a criminal conviction by successfully completing a term of probation. The statute provides:
(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 600.1084. 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 otherwise provided by law, 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.
MCL § 333.7411. Under § 7411, the court, with the defendant’s consent, can defer the entry of the judgment of guilt and place the defendant on probation with terms and conditions that may include participation in drug treatment programs along with other standard conditions such as community service and court supervision. If the defendant successfully completes the term of probation, the charges against the defendant are dismissed and no public record of the charge or disposition is retained. While no public record of the § 7411 disposition is maintained, the Michigan State Police will still maintain a nonpublic record of the arrest, court proceedings, and disposition of the criminal charge under § 7411. This non-public record is available to courts, law enforcement personnel, and prosecuting attorney’s for the purpose of determining whether a defendant has been previously sentenced under § 7411.
However, a § 7411 can only be used one time. It can be used for both misdemeanor and felony offenses. While simple possession of marijuana is only a misdemeanor, the simple possession of many other commonly used controlled substances is a felony. Some of these drugs include heroin, cocaine, MDMA (ecstasy) and analogues. Analogues include drugs such as Xanax and Vicodin. The maximum penalties for possession of these controlled substances varies:
|Drug Crime||Maximum Penalty|
|Ecstasy, methamphetamine||10 years in prison|
|Heroin, cocaine||4 years in prison|
|Possession of analogues||2 years in prison|
|Possession of LSD||1 year in jail|
|Possession of Marijuana||1 year in jail|
A § 7411 deferral is available to both defendants who plead guilty and those who are convicted after a contested trial. While the prosecuting attorney may express his consent or objection to a sentence under § 7411, the discretion as to whether to sentence a defendant under § 7411 sentence rests entirely with the court. Accordingly, a judge may grant a § 7411 sentence to a defendant even over the objection of the prosecuting attorney. A § 7411 is not available if the charges consist of drug delivery, possession with intent to deliver or manufacturing. In those cases, the only manner in which to obtain a § 7411 sentence is to convince the prosecuting attorney to allow the defendant to plead to simple possession.
A § 7411 sentence is not guaranteed simply because you meet the eligibility requirements. Some courts will give a § 7411 sentence almost automatically to first time controlled substance defendants. Other courts will only grant a § 7411 sentence in limited circumstances or after finding good cause. Since the decision to grant § 7411 lies completely within the judge’s discretion, it is crucial that you hire an attorney who has experience practicing before the court in which your are charged.
The attorneys of Springstead Bartish & Borgula Law, LLC have negotiated countless § 7411 dispositions for clients charged with drug offenses in courts throughout West Michigan. Our experience working in courts throughout West Michigan benefits our clients because our attorneys tend to know the most effective means of obtaining a § 7411 for our clients and whether, and under what circumstances, a particular court will use § 7411. Our lawyers also know through experience what actions our clients need to take prior to sentencing, whether it be drug counseling or narcotics anonymous, to put them in the best position to obtain a § 7411 sentence.
If you or somebody you know has been charged with a drug offense and is seeking a § 7411 sentence, call Springstead Bartish & Borgula Law for a free consultation. Our firm is dedicated almost exclusively to criminal defense and to getting the best results possible in every case.