Articles Posted in Drugs

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  • The information in this blog is not a substitute for seeking the legal opinion and/or legal representation of an experienced immigration lawyer who is fully aware of lawful permanent resident’s background and personal circumstances.  Immigration law is prone to frequent changes in the law that can affect the validity of the information provided herein.  For any immigration law issue I recommend attorney Sufen Hilf of the law firm Hilf & Hilf, PLC.

With the increasing legalization by States for marijuana there is a false perception that Federal law is also more tolerant.  The federal penalty for possession of marijuana (as a first time marijuana conviction only) is a misdemeanor with up to 1 year of incarceration and a maximum fine of $1000.  The federal penalty for selling or distributing less than 50 kilograms of marijuana is a felony that carries up to 5 years of incarceration and a maximum fine of $250,000.  At the time of this blog marijuana is classified under Federal law as a schedule 1 substance.

Immigration law is similarly in opposition to marijuana use, possession, distribution, sales, or cultivation.  Moreover, any sort of a diversionary sentence in State court in which the alien pled guilty before a Judge is still viewed as as a conviction.  It does not matter if the State considers the conviction as expunged, sealed, or not entered into a public record.

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Drug possession, cultivation, and manufacturing charges are very serious and require skilled legal representation.  Michigan, like other states, recognizes that drug related crimes can vary in terms of seriousness.  In the State of Michigan, there are 5 categories of drug crimes.  Defendants facing any of the following drug related charges need to secure expert legal representation.

Schedule 1 Controlled Substances include drugs like marijuana, heroin, mushrooms, ecstasy, and LSD.  Schedule 2 Controlled Substances include cocaine, opium, morphine, and oxycodone.  Medical marijuana also falls under this umbrella.  Schedule 3 Substances consist of drugs that have some medical purposes, but can lead to dependence and abuse.  Some examples include lower power morphine, anabolic steroids, codeine, and more.  Schedule 4 Substances are considered less serious than Schedule 3 and include drugs like Xanax and Valium.  Lastly, Schedule 5 Substances include medicines consisting of ephedrine, codeine, mixtures with opium among others.

Those charged with Schedule 1 or 2 are facing very serious consequences.  Defendants with lesser charges should not mistakenly consider a reduced charge as something insignificant.  All drug charges can result in severe consequences in Michigan and need to be taken seriously.  For this reason, defendants in Michigan should contact a firm with a longstanding history of providing legal representation in drug related cases ranging from Schedule 1 through Schedule 5.

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There are a variety of reasons individuals experiment or become addicted to drugs, such as: social history, genetic disposition, use by friends and/or family members, income level, how the individual handles stress, etc.  A list from most addictive to least addictive substances include:

1) Heroin – the most addictive substance.  Users often feel intense drug cravings and withdraw when denied this substance.
2) Crack Cocaine – crack is the most potent form of cocaine.  Due to the fact that the high lasts approximately 15 minutes, it leads to repeated use which speeds up the onset of addiction.
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A person convicted of a drug possession offense in Michigan may qualify to have his or her record expunged at the time of sentencing.

In Michigan (for non federal cases) an individual who either pleads guilty or is found guilty of possession or use of a controlled substance, or possession or use of an imitation controlled substance for a second time, may be granted by the Court a special provision of the law called 7411 (also known as Michigan Compiled Law 333.7411) as long as he or she has not previously been convicted of a drug possession or delivery charge.  Under 7411 status the Court without entering a judgment of guilt may defer proceedings and place the individual on probation.  Probation would include the payment of fees and cost, and may (but does not have to) include conditions such as a jail sentence, drug/alcohol treatment, drug Court, drug/alcohol testing reporting to a probation officer and other standard terms and conditions of reporting or non-reporting probation.  If the person successfully completes the terms and conditions of probation ordered by the Court, the Court shall discharge the individual and dismiss the proceedings without an adjudication of guilt.  An individual in Michigan has only 1 opportunity in life for 7411 status.  However, an individual charged with multiple drug charges as part of the same case (for example, a person charged with being in possession of marijuana and possession of cocaine at the same time) can receive 7411 status for all the drug offenses incurred at that time.
For any criminal offense, your best bet is to hire an experienced criminal defense lawyer, such as Attorney Daniel Hilf from the law firm of Hilf & Hilf, PLC.
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What are my chances of getting 7411 for possession and paraphernalia citations at the same time?

I received two Misdemeanor citations in the same traffic stop, one for possession of paraphernalia and the other for possession of marijuana(very small amount). I am 28 I have never been arrested or in trouble?

            
You can get 7411 for possession of marijuana, but not for the paraphernalia charge.  It may be  possible to reach a plea bargain or under advisement sentence to address the paraphernalia charge if you intend to plead guilty.  However, you should speak with an experienced criminal defense lawyer, such as the lawyers at Hilf & Hilf, PLC to see if the case can be dismissed on Constitutional grounds or is defensible at trial.
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Possession of Drug Paraphernalia in Michigan, pursuant to MCL 333.7451 and MCL 333.7455(1), is a misdemeanor, punishable by imprisonment for not more than 90 days, or a fine of not more than $5,000, or both.  Sale of Drug Paraphernalia by a person 18 years old or older to someone under the age of 18 years in Michigan, according to MCL 333.74511 and MCL 333.7455(2), is a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $7,500, or both. These offenses are also sometimes prosecuted as local ordinance violations which are also considered to be misdemeanors.   A person convicted of either Possession of Drug Paraphernalia or Sale of Drug Paraphernalia is not eligible for section 333.7411 (which is a special provision in Michigan law to have the offense not appear on a Defendant’s record).  However, these offenses are eventually eligible for expungment, if the person otherwise qualifies, 5 years after the conviction is entered or incarceration ceases (whichever is later).

What is Drug Paraphernalia?  Drug paraphernalia is defined under MCL 333.7451 as any equipment, product, material, or combination of equipment, products, or material, which is specifically designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.  Examples of Drug Paraphernalia include (but are not limited to): marijuana pipes, marijuana grinders, rolling papers, heroin works kits (spoon, syringe, hose, etc), cocaine kits (razor blade, mirror, etc.), snorters, scales for weighing drugs, etc.

Will I Be Prosecuted For Possessing Something That Could Be Used As Drug Paraphernalia?  The law in Michigan recognizes that there are devices that have legitimate uses which can also be used as Drug Paraphernalia such as hypodermic needles, pipes, mixing devices, etc.  Under MCL 333.7457 persons that sell these items for legitimate purposes are not going to be prosecuted.  For the consumer or user of an item such as a hypodermic needle (that has a potentially legitimate and a potentially illicit purpose) the intent of the person who possesses the item is the key issue.  For example, a diabetic who possesses a hypodermic needle to inject insulin has committed no crime.  However, a hypodermic needle found with a spoon and a lighter is evidence that the intent of the possessor of those items is to use heroin and would likely be classified as Drug Paraphernalia by a police officer, city attorney and/or prosecutor.  A person with rolling papers together with marijuana should be treated differently under the law in Michigan than a person with rolling papers together with regular tobacco.

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Delivery or Manufacture of Marijuana in Michigan is a 4 year felony. This includes less than 5 kilograms of marijuana or 20 Plants of Marijuana. Delivery or Manufacture of more than 5 kilograms but less than 45 kilograms of Marijuana is a 7 year felony. Delivery or Manufacture of 45 kilograms or more of Marijuana is a 15 year felony. As stated before, Possession of Marijuana is a lessor offense, and can be a 1 year misdemeanor or less depending upon where the case is prosecuted.  A defense to marijuana cases, if applicable, is the Michigan Medical Marijuana Act that applies to both caregivers and patients.

Possession of Marijuana can be actual or constructive possession. Actual possession means that the marijuana is in the Defendant’s hand, pocket, or otherwise on his or her person. Constructive possession means that the Defendant had dominion and control over the marijuana, but did not actually possess it. An example of constructive possession of marijuana would be if a police officer arrested a Defendant in his home, but located marijuana in a search of the glove compartment of his car. Possession can also be joint, which in relation to a criminal prosecution means that more than one person has the right (albeit, not in a legal sense) to possession the marijuana in question.

Delivery means that the Defendant transferred or attempted to transfer the marijuana to another person knowing that the substance was marijuana, and intending to transfer it to another person. This has to go beyond just preparing to commit a crime, to a point where the crime would have been completed but for some sort of interruption that occurred. Being merely present where any crime has been committed, without anything more, is not enough to support a conviction for an offense.

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Drug offenses in Michigan can be prosecuted by State prosecutors, cities, or in Federal Court. This blog does not address Federal drug charges.  For any drug offense it is important to retain a great lawyer, such as attorney Daniel Hilf.

The basic elements of the crime of possession of a controlled substance are:

(1)     The Defendant possessed a controlled substance;

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