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.
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Charges brought to sentence under 7411, CANNOT BE EXPUNGED and may therefore, show up in a federal background investigation even if an adjudication of guilt was never entered. See MC235. The court will not grant a motion for an order to expunge if the movant cannot check the box in paragraph “2” of the “Motion” section, stating: “This motion does not pertain to any sentence imposed under MCL 333.7411.”
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.
(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 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.
(2) All court proceedings under this section shall be open to the public. Except as provided in subsection (3), if the record of proceedings as to the defendant is deferred under this section, the record of proceedings during the period of deferral shall be closed to public inspection.
(3) Unless the court enters a judgment of guilt under this section, the department of state police shall retain a nonpublic record of the arrest, court proceedings, and disposition of the criminal charge under this section. However, the nonpublic record shall be open to the following individuals and entities for the purposes noted:
(a) The courts of this state, law enforcement personnel, the department of corrections, and prosecuting attorneys for use only in the performance of their duties or to determine whether an employee of the court, law enforcement agency, department of corrections, or prosecutor’s office has violated his or her conditions of employment or whether an applicant meets criteria for employment with the court, law enforcement agency, department of corrections, or prosecutor’s office.
(b) The courts of this state, law enforcement personnel, and prosecuting attorneys for the purpose of showing either of the following:
(i) That a defendant has already once availed himself or herself of this section.
(ii) Determining whether the defendant in a criminal action is eligible for discharge and dismissal of proceedings by a drug treatment court under section 1076(5) of the revised judicature act of 1961, 1961 PA 236, MCL 600.1076.
(c) The department of human services for enforcing child protection laws and vulnerable adult protection laws or ascertaining the preemployment criminal history of any individual who will be engaged in the enforcement of child protection laws or vulnerable adult protection laws.
(4) 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.
(5) Except as provided in subsection (6), 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.
(6) 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.