Canton Minor in Possession - Affirmative MIP Defenses
The year 2018 brings a change to the Minor in Possession law in Michigan.
Pre 2018, an MIP was a criminal misdemeanor, now a first offense is a civil infraction. This is under State of Michigan law, but most local cities, townships, villages and municipalities are sure to follow this change in the law.
When I speak to other defense lawyers, judges, prosecutors etc, all of them view this as a problem solving resolution, which is fair and equitable and everyone wins. While I agree decriminalizing Minor in Possession this is a good thing, there are far reaching unrecognized consequences to this change of the law. Handling this new civil infraction in a reckless manner will end up worse in the end than how it was treated under the old law.
Under the pre-2018 law, someone charged with minor in possession would usually go under a non-public deferment program, where the guilty plea would be withheld and never entered against the person. The case itself would not be public. Yes that person would be on probation and be subject to things like counseling, community service, alcohol testing etc, but in the end, nobody ever needs to know about it.
Under the new law, a judge can still order the defendant to participate in community service, alcohol testing and substance abuse treatment. Failure to comply will turn the case into a misdemeanor with little opportunity to avoid a criminal conviction.
Under the new law, young adults under 21 are going to view this as a get out of jail free card, and everyone gets to be caught once - no big deal?. This is going to lead to more irresponsible drinking, including binge drinking and more risk taking, including drunk driving, because the shortsighted end result in the mind of the young adult will be essentially a speeding ticket. They are both civil infractions yes, but let’s think a bit outside the box.
Here’s the problem, you don’t want to walk into the courthouse and plead responsible to a Minor in Possession. Why? Because most states still consider it a criminal misdemeanor and it’s a 100 percent public record for employers, graduate schools and the public to view.
You may think well it’s not a crime anymore, so no big deal, well Fortune 500 companies and a law, business, nursing, medical or other graduate programs are going to run your public court record and see this offense, and will judge you based upon the result. Will it matter? Maybe; why take that chance?
Are they going to say applicant #1 has an MIP in Michigan, but applicant #2 has no record, but after researching it, it’s a civil infraction, so it’s ok, lets go with the first applicant? No, they are going to assume its a criminal offense, or still perceive it to be the same; in the end, they don’t care how Michigan views the law.
The person viewing the offense may or may not know about how Michigan views it, and if they do, may not care.
When I was a prosecutor in NYC, we had a lower drunk driving offense that was not a criminal misdemeanor, but in the end, it’s still drunk driving, and on a public record, the reader of the record is unlikely to make the distinction or care to make it, because it’s the same set of circumstances - broadly drunk driving or in this case, possession of alcohol under the age of 21.
I am of the mindset that possession of alcohol for a minor is not the end of the world, and not “serious” in light of other offenses, but it’s still a sign of poor decision making, not appreciating risk or contemplating the consequences of one’s actions; that doesn’t change because the legislature now calls it a civil infraction versus a misdemeanor. If I saw a driving record with 10 speeding tickets, all civil infractions, I would question that person’s judgment on the road, despite it not being a criminal offense.
So here’s what I’m doing with all of my clients who are charged with minor in possession in 2018 and beyond.
We’re going to treat it like a criminal case in terms of obtaining all discovery, evidence and statements; just because it’s no longer a crime, doesn’t mean we’re not going to pursue defenses and create leverage. We’re going to be extremely proactive to address the poor decision that lead to this case, and educate and learn from it. If we take care of it upfront, easier to have the prosecutor and judge agree with our plan versus being told what the options are for the case.
We’re going to set it for a formal hearing and not go plead guilty. Why just go plead guilty, what’s the benefit?
Might as well set it for a hearing, make the officer show up and testify. In the end, if the prosecutor and police officer do 100 percent their job, you have the same result in the end. It’s more likely the officer doesn’t show, the prosecutor doesn’t want to waste time on the hearing, or the officer doesn’t remember such a “small incident” and can’t provide the necessary proof to the court.
For most college town MIP cases, the officer is handing out 100’s of tickets a day, do you really remember my clients case? Probably not.
What’s going to end up happening is the prosecutor is going to be leveraged into offering something other than a minor in possession civil charge, which is what we want. So here are your options if charged with a first MIP in Michigan from 2018 and beyond.
2. Be proactive from day one, explore defenses, create leverage by having the opportunity to set a hearing, work toward a different resolution or hold the hearing and win; worse case, you end up with #1, and have a better chance of avoiding having to do the community service and counseling as part of a probation term.
Here’s how things might play out with the prosecutor under the new law with this approach.
Me: So it's just a civil infraction now?
Me: Great, let's hold the formal hearing!!
Prosecutor: Whatttta mean?
Me: Let's hold it - your cop has no idea who jimmy, john or paul are, and can't remember each ticket
Prosecutor: Ughhhh, keep your voice down, don't want the other lawyers hearing this
Me: Let's really see if my client said X, Y or Z or if they really had alcohol in that cup, might as well, worst case, my client takes the civil infraction right?
Prosecutor: Crap, you didn't want to hold these when it was a misdemeanor, because losing meant a criminal record
Me: Right. Do you want to offer me something to avoid this hearing? Impeding? Littering?
Prosecutor: Ughhh, yeah I guess