Delayed Sentencing and Probation for Minor Drug Possession in Michigan – MCLA 771.1

Under MCLA 771.1, a defendant who has been convicted of non-major controlled substance offense, or pleaded guilty to a non-major drug offense, may be able to have his sentencing delayed for up to a maximum of one year.

During that year, a defendant will be required to show he or she is not likely to offend again, and complete all terms of probation. As our experienced Michigan drug crimes defense attorneys and Grabel & Associates can explain, this can involve having a reduced sentence imposed, or having the charges dismissed so there is no criminal conviction entered on defendant’s record. This will not result in a sealed record for the defendant. Still, avoiding a criminal drug crimes conviction is extremely helpful in terms of future employment, as well as many other aspects of defendant’s life, including access to government services, such as public housing.

Eligible Drug Offenses for 771.1 Sentencing in Michigan

Treatment under 771.1, as it is often called by those who regularly handle drug crimes defense in Michigan, is not eligible for cases in which the defendant has been charged with a major drug offense, or cases in which the defendant has been charged or convicted of murder, armed robbery, criminal sexual conduct in the first degree, or criminal sexual conduct in the third degree, it is possible in cases in which the defendant was charged with what is often considered a minor drug offense. This essentially includes possession of a controlled substance, or use of a controlled substance. It does not include the following which are major drug offenses in Michigan:

  • Delivery of a Controlled Substance
  • Possession with intent to deliver a Controlled Substance

These two charges are not eligible for a sentence under 771.1. However, that does not mean you will be automatically excluded from treatment under 771.1 if you were charged with one of these offenses. It is important to remember that being arrested for any crime does not mean you will be convicted of that offense. There are many ways a conviction can be avoided including winning at trial and getting an acquittal. There are also many cases in which a defendant will get a deal where they can plead to guilty lesser-included offenses, or even a different offense entirely in some cases.

For example, if a defendant was found with a large amount of marijuana along with paraphernalia consistent with drug delivery such as baggies and a digital scale, defendant’s criminal defense attorney and the prosecuting attorney may agree that the defendant will plead guilty to possession of a controlled substance instead of the possession with intent to deliver offense for which he or she was charged. This is often referred to as having a prosecuting attorney break down a charge for the benefit of getting the defendant to take a plea. This is not to say you should always take a plea, even if the charges are reduced, as the facts are never the same and every case is unique, so the best thing you can do is to speak with an experienced criminal defense attorney about your actual case.

Complying With Terms of Probation

In a Michigan drug case in which a defendant was sentenced under 771.1, the defendant will have to show during that year that he or she is not likely to reoffend and to prove having a dismissal or reduced sentence (below the Michigan sentencing guidelines) is in the interests of justice.

Defendant will also have to complete drug rehabilitation or counseling in many cases, and will have to take regularly scheduled or random drug tests. One may be placed on a schedule for drug testing, and then have that order switched to random drug testing once a history of clean tests has been established. Drug rehabilitation can include outpatient treatment, or even a residential drug treatment program. If the defendant does not complete this rehab program, the judge may revoke 771.1 treatment as does happen in many cases.

For this reason, if you are fortunate get a judge to agree to delay sentencing under 771.1, it is important to do everything possible to comply with the terms to which you have agreed. While some of the terms may seem harsh, it is important to understand this is imposed pursuant to an agreement, and the alternative may be a much harsher sentence including prison time followed by rehabilitation.

One of the drugs that has been wreaking havoc across the state of Michigan is heroin as well as a prescription narcotic such as OxyContin and Vicodin. The entire nation is dealing with has become a major health crisis involving the abuse of opioids. The U.S. Drug Enforcement Administration (DEA) keeps and publishes regular statistics, including the fact that in any given year, there are more than 30,000 heroin arrests.

For drug crime defendants grappling with addiction, this type of reprieve can be an important opportunity. Successful completion of drug court (which has its own stringent requirements) is often a condition for MCLA 771.1. It’s one of the few opportunities in the adult criminal justice system that allows defendants a way to stay out of prison and hopefully get their lives back on track. If is often the family members that hire a criminal defense attorney in Michigan for drug crimes, so a 771.1. disposition should be something the family should discuss during a free initial consultation.

Still, it should not be agreed to lightly. The conditions are often restrictive, and failure to comply can result in even more severe penalties. Having an honest conversation with your attorney about your legal options is necessary.

Remember too that this is an option for first-time offenders. If there is a defendant charged with a second or subsequent offense, it will be necessary to look for other options to keep a defendant out of prison and if possible, avoid any new criminal convictions. There are often a lot of ways this can be accomplished including filing a motion to suppress the search and seizure if the facts support the filing of such a motion. This is often based upon a violation of the Fourth Amendment of the U.S. Constitution or the state constitution.

Contact Michigan drug crime defense attorneys at Grable & Associates at 1-800-342-7896.


With drug crime defense attorneys statewide, Grabel & Associates defends people throughout Michigan charged with possession, intent to distribute, manufacturing, cultivation and illegal prescription drugs.

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