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Minor in Possession – First Offense

A first offense for Minor in Possession of Alcohol (MIP) can be as bad as an assault and battery. This is because it is a criminal misdemeanor that will go on your criminal record as well as your driving record. How you and your family handle this event can make the difference between having a record and making sure your record is clean. This can be accomplished by the use of investigation, leverage and negotiation to obtain either a dismissal or diversion program.

How This Affects Your Future

A conviction for MIP may affect your:

• College
• Jobs
• Driving Privileges
• Graduate Schools

Don’t let this mistake affect you in the future.

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Diversions, Dismissals and Delays – Are You Eligible?

In my research on Minor in Possession statutes and laws across the country, and especially in Michigan, I have found that most states and courts offer a diversion program for first offenders. This is a generalization of course, and you should check with your local district court to determine if a diversion program is offered in the county in which you were charged. I have come across only one judge in one particular county in Michigan that does not offer a diversion program. We are in the process of contacting the ACLU and our team is considering filing a lawsuit to force this court to offer a diversion program, which in Michigan is available by statute. In Michigan, it is within the judge’s discretion whether or not to offer a diversion program, and we do not have a problem with a judge exercising this discretion on a case-by-case basis. However, this particular judge has made the determination that he will not offer ANYONE a chance at diversion and announces this fact in open court before the first arraignment date. In addition, this judge sets a $200 cash bond on anyone who pleads not guilty at that first court date. I have seen far too many college kids go to jail because they could not post the $200 cash. No credit or debit cards accepted. Unbelievable. And this is on an offense that in Michigan does not even carry any jail time as a consequence.

However, as I have stated the majority of courts in Michigan offer a diversion program and my research on other states indicates that many jurisdictions, especially those that have college campuses, offer a diversion program.  Where the student must be careful, and I mention this in the chapter about the court process, some judges will not offer the diversion program at arraignment. While most judges will not admit this, the reason they do not offer a diversion at the initial arraignment is because of the “monkey see, monkey do” principle. If one student sees another student getting a diversion program because they have an attorney at their arraignment, then everyone will demand the same. When I have seen 200 or more kids being arraigned in a morning, this is a lot of students to manage on probation. I have had some judges and prosecutors tell me that if I schedule a plea for a certain time of the day and not on their arraignment docket, my client will get his or her diversion. Some judges will not offer the diversion program unless they either hire an attorney and negotiate this resolution with the prosecutor or represent themselves and get the same deal.

Therefore, this is the very reason why my book is entitled “Minor in Possession: How to Plead NOT Guilty Every Time!” In order to have a shot at the diversion program, you MUST plead not guilty at the initial arraignment. The only exception to this basic rule is if the court offers the diversion program at the initial arraignment and makes that point very clear BEFORE they accept guilty pleas from students.  A great example of this is Washtenaw County District Courts that represent the University of Michigan. They have a specific first offender docket and have a form preprinted at the arraignment guaranteeing that student a diversion program if they plead guilty. I have included a copy of the form for your review if you are a student in Washtenaw County. In other counties, the judge may line everyone up and tell them in a group that he or she offers a diversion program if they plead guilty. As long as this is placed on the record before the judge accepts guilty pleas, I do not have a problem with students pleading guilty. However, every case is different and what if it is a second offense? What if they have already used a diversion before? What if they have several charges? All of these are very good reasons to consult with and retain an Attorney to protect your rights.

What is a diversion program?

Typically it involves a program where the student must participate in probation for a period of time to be determined by the judge and the probation department. It can be as light as attending a class and showing proof to as rigorous as alcohol testing and individual counseling. It will vary by jurisdiction. In my research on this topic nationwide, it appeared that every state had a different program for complying with the diversion program. A diversion program usually requires that the student plead guilty and give up all their trial rights in order to participate. Once the student pleads guilty, he or she is placed on probation and monitored by the probation department. Of course there is a fee for this and it can be pricey for sure. However, most programs have the great feature of being considered “non-public” and will result in a dismissal after all the conditions have been met. What this means is that the student, while on probation, does not have to state that they have been convicted of a misdemeanor and can honestly answer questions from employers and colleges regarding their criminal record. However, the caveat is that if the student does not successfully complete the diversion program, they can have it revoked and the criminal conviction can instantly appear on their record. Therefore, I encourage students who think they may have a defense to their case, either on the facts alone or a constitutional defense to hire a competent attorney.

What is a dismissal and how do I get it?

This is a very rare occurrence in criminal defense practice. However, our firm has been successful in securing many dismissals since focusing on defending students charged with Minor in Possession all over Michigan. The reason that dismissals are rare is that a prosecuting attorney has full discretion as to whether or not he or she even charges a case to begin with. Therefore, a student and his or her parents can be assured that if a warrant is issued or the original charge is authorized, the prosecutor does not intend on dismissing the case without a vigorous defense. Therefore, the parent that believes that they will be able to talk to the prosecutor and “work things out” is sorely mistaken. In fact, I run into situations quite often where the overzealous parent has already contacted the police, the prosecutor and anyone else that might be willing to listen. This can seriously jeopardize any defense that might be presented to the prosecutor by the defense attorney. The main reason why this can be detrimental is the fact that prosecutors are human beings. They are getting a glimpse of the person they are going to be facing for the first time usually at the pretrial conference. A skilled defense attorney knows the prosecutor, the judge, and most importantly how to present a case without “raising the gates”. Too many times I have been retained by the same overzealous parent and come to find out that they have already angered the local prosecutor, police and usually the court with their inquiries and demands. It is very tough to put that Genie back in the bottle once released.

A dismissal occurs when the prosecuting official either feels that their case is too weak to take to trial, their witness is unavailable, or they do not want to waste the resources to take a Minor in Possession case to trial. I have been literally sitting at the defense table on the day of trial, ready to pick a jury, and the prosecutor has leaned over and informed me that if my client completes community service he will dismiss the charges. I have filed motions to dismiss and to suppress evidence and received dismissals.  I have actually held the motion hearing and the judge was interested enough in my argument to want an additional brief on the law from the prosecutor…the result was the prosecutor did not feel like waiting for an adverse ruling and dismissed the case altogether. I have received dismissals by having my client submit to an alcohol assessment from a professional showing that he or she does not have an objective alcohol problem and the incident was isolated. As stated above, these dismissals will almost always be the result of a skilled defense attorney gaining leverage on the prosecuting attorney by filing motions or presenting a valid defense. Parents feel that they can “protect” their child at all costs and make it go away for them. They are better served by asking around in the county their son or daughter is charged in and finding a good attorney to protect their child instead.

Creative Resolutions To Tough Cases

A straight out dismissal is not always possible, but there are other ways to get a case dismissed without being put on a diversion program of probation. Some jurisdictions and some prosecutors and judges will allow a student to “plea under advisement”. This simply means that the student pleads guilty to the underlying MIP, but the plea is not entered until after a period of time to monitor the defendant. If the student is clean during this advisement period, the court agrees to dismiss the charges and the student will not have a criminal record. I have secured these plea deals by presenting a convincing case on why my client is different from the hundreds of other students they see every day. Maybe they are in the military, or have an outstanding record of community service, or they have a record of achievements that would be ruined with a criminal record. I typically have my clients compile an achievements “resume” for filing with the prosecutor and the judge.

Another option that I have used is for my client to have a “delayed sentence”. This means that the student pleads guilty to the original charge and it is on their record…for a short period of time. The judge will agree to delay the sentencing of the individual for 3 or 6 months to give the student an opportunity to show why they are worthy of a dismissal. If all the terms of the agreement are met at the end of the delay, they can receive a dismissal or a reduction of the charges to a civil infraction that does not result in a criminal record. This must be accomplished through what is called a “Cobbs Plea” in Michigan. This is named after a case, People v. Cobbs  People v. Cobb ? and it is simply an agreement between the sentencing judge and the student before they enter their guilty plea. If the judge follows the agreement, the sentence promised is imposed. If the judge finds that he or she cannot follow the agreement, either because there is a prior record or an aspect of the case that they find disturbing, the student can withdraw their plea and continue to trial without the plea being used against them.

I have used other methods to obtain a dismissal of a charge, including one that is available in Michigan called the Holmes Youthful Trainee Act or “HYTA”. You should check with your local court or attorney as to whether or not there are other programs available in that state for first time offenders. Even if a student has used up their diversion program dismissal, some courts will allow the student to plead guilty under the Holmes Youthful Trainee Act in order to give them one more chance at a clean record. This is usually in response to a more serious crime than MIP, typically a resisting and obstructing a police officer, or driving while license suspended. However, I have seen students be treated under the HYTA after they have had a prior MIP dismissed under a diversion program. This is another form of first offenders program that allows a minor under 21 to plead guilty to a charge, successfully complete a rigorous term of probation, and have the case dismissed by the court after probation is completed. This is rare, but it is something for the student’s attorney to consider based on the jurisdiction.

Conclusion

In conclusion, the availability of diversion programs, delayed sentences, pleas under advisements and outright dismissals absolutely warrants a NOT GUILTY plea at your arraignment! Even if you cannot afford an attorney, it is worth a shot at convincing a prosecutor that you are worthy of one of these programs. The information contained in this chapter alone may be enough for you to protect your future and keep your record clean. Remember, the first and best option is to hire a skilled defense attorney to represent your interests with the prosecutor. The next best option is to dress like an attorney (suit and tie, pants suit, or women’s suit) and speak with confidence and intelligence about your case. Do not make excuses or blame anyone else for your trouble. Take control of your case and choose to do something about your future.

Call 1-866-387-2757 for a Free Consultation