What are the options for a first offense? Can charges get dismissed?
A person charged with a first offense felony or misdemeanor might have options that are not available to a repeat offender. An experienced lawyer will know to get charges dismissed, avoid a conviction, or eliminate jail time.
A delayed sentence, an “under advisement,” deferred prosecution, and other tricks of the trade to get first offenses dismissed.
First offense sentencing options are available to someone charged for the first time with specific misdemeanor and felony offenses in Michigan, including a delayed sentence, advisement, deferred prosecution, and various statutes that avoid convictions and jail. An experienced criminal defense lawyer will know all the available plea bargaining options and how to maximize their chances of obtaining an extraordinary result. A person charged with a first offense for certain offenses, if they are under 26 years old (at the time of the offense) or if other exceptional circumstances exist, may qualify for a particular disposition whereby a conviction can be dismissed or set aside upon meeting specific requirements or the offense may NEVER even go on their criminal record. Although these options may be available, there is no guarantee that the judge will grant this type of extraordinary relief. This is where a great criminal defense lawyer can be invaluable and determine if there is a conviction or a clean record.
Drug Crimes include all Controlled Substances, Cocaine, Prescription Medication, Analogues, and Others
MCL 333.7411 (also known as “7411”): This provision allows for a first-time offender using or possessing unprescribed prescription medication, cocaine, Vicodin, Xanax, Oxycontin, or controlled substance to have the proceedings deferred without entering a judgment of guilt. This provision is a first offense sentencing option for misdemeanor and felony drug offenses. After successfully completing probation, the court shall discharge the individual and dismiss the case. If granted treatment under 7411, the status may be lost if there is a violation of probation.
Dismissal Under a Delayed Sentence
Although many judges are reluctant to grant a delayed sentence, and some outright pretend they do not have the authority, a dismissal after a period of time following disposition on a misdemeanor or felony case is possible under MCL 771.1. This provision can be an essential tool for Michigan Criminal Defense Lawyers while fighting to achieve outstanding results. In cases other than murder, criminal sexual conduct, and major drug offenses, if the defendant is found guilty or pleads guilty if the court determines that the defendant is not likely to engage in an offensive or criminal course of conduct and the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation for not more than one year to allow the defendant to prove his eligibility for probation or another leniency compatible with the ends of justice. This section also does not apply to juveniles. If granted a delayed sentence, this first offense sentencing option might be lost if there is a probation violation.
Youthful Offenders – Holmes Youthful Training Act (HYTA)
MCL 762.11: This statute applies to those charged with crimes committed between 17 and 21 years old and sometimes up to 26 years old. If the sentencing judge grants the defendant HYTA status, no conviction is ever entered on their record. Essentially, the case is taken under advisement and dismissed when probation is completed successfully. Many people, including less inexperienced criminal lawyers, do not know that probation under HYTA may include incarceration in jail or prison. Youthful trainee status is not available for certain offenses, including but not limited to offenses involving life in prison or major controlled substance offenses. If granted treatment under HYTA first offense sentencing option, the status may be lost if there is a probation violation. For those between the ages of 21 and 26, the defense lawyer must persuade the prosecutor to agree to HYTA.
Dismissal of Domestic Violence Cases
Under the Domestic Violence Statute, MCL 769.4a, when an individual who has not been convicted previously of an assaultive crime pleads guilty to or is found guilty of domestic violence, the court, without entering a judgment of guilt and with the consent of the accused and the prosecuting attorney may defer further proceedings and place the accused on probation. In other words, this statute is only available as a first offense sentencing option. As you may expect, many domestic violence complainants (AKA victims) are reluctant to agree to a disposition that does not result in a conviction. An aggressive, experienced criminal defense attorney is often the key to convincing the prosecutor to persuade the court and complainant to agree to this resolution. If granted treatment under 769.4a, the status may be lost if there is a violation of probation.
Avoiding Jail for a First Offense
Depending on the offense, impact on the victim (if any), and the defendant’s background, a judge might consider jail or prison, even for a first offender. A skilled, experienced lawyer would have the best chance of persuading a judge to consider alternatives to jail. If successful, the lawyer will convince the sentencing judge to focus on rehabilitation rather than incarceration.
Why an Experienced Michigan Criminal Defense Attorney Can Help
All of the provisions above are NOT guaranteed, even if a defendant meets all the requisite criteria. Many judges are reluctant to grant any status that results in the defendant avoiding conviction. A conservative or strict judge may decide that a defendant should have a conviction and, if rehabilitated, be forced to seek expungement when eligible. Unfortunately, an expungement is not guaranteed. A defense lawyer must do everything humanly possible to fight to convince the sentencing judge that the client is worthy of special consideration and eligible for a favorable first offense sentencing option.
Another complicating factor can be a recalcitrant or overly zealous prosecutor. Prosecutors are pre-programmed to give defendants a hard time in court. In many cases, there develops a personal animosity with a defendant or a sympathy for a “victim,” and the prosecutor objects to special consideration. This is particularly problematic in some courts where judges are predisposed to follow the prosecutor’s recommendations. A great criminal attorney will know what to do to convince the prosecutor not to object or, in the alternative, convince the judge to grant a special sentencing provision over the prosecution’s objection.
All of the above sentencing options are available in Circuit Courts and District Courts throughout Oakland County, Macomb County, Wayne County, Livingston County, Washtenaw County, and many other jurisdictions throughout Michigan. If you or a loved one is a first-time offender or may be qualified for any of the above provisions, please call LEWIS & DICKSTEIN, P.L.L.C. for a free consultation. We will take the time to speak with you, answer all of your questions, and address your concerns. We will find a way to help you.
Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.
We will find a way to help you and, most importantly,
we are not afraid to win!
