Michigan’s Minor in Possession of Alcohol law, not exactly a slap on the wrist.

MICHIGAN’S MINOR IN POSSESSION OF ALCOHOL LAW

NOT EXACTLY A SLAP ON THE WRIST

An minor in possession(M.I.P.) conviction is no longer a slap on the wrist.  In Michigan, the Legislature has turned up the heat on the burner, so much so, many young people are getting burned and the Courts have held a portion of the M.I.P. statute, MCL 436.1703 unconstitutional.

The M.I.P. game is different for the current generation.  Ignorance of the M.I.P. law in Michigan could really hurt a young adult.  The following are some characteristics of the M.I.P. statute that many people don’t appreciate:

1.         True first offenders may receive a deferred sentence.

2.          Multiple convictions for M.I.P. will result in a suspension of your driving privileges in Michigan.

3.         Under limited circumstances, an M.I.P. conviction could result in an actual jail sentence for the perpetrator.

It is possible to receive a deferred sentence for an M.I.P. offense.  Under a deferred sentence, the Court will place the offender on probation, at the conclusion of a successful term of probation; there will be no public criminal record for the offender.   So basically, if the young adult doesn’t secure a deferred sentence for the first conviction, a second conviction will result in a 30-day suspension of driving privileges.  I like to think of the deferred sentence as a “use it or lose it” situation.  It is easy to imagine a scenario where a defendant’s ignorance of the law severely affects their life.  For example, a college student attends a party and is picked up for under age drinking.  The student appears at Court for their arraignment.  Having been caught red handed with some alcohol; the student thinks well I will just plead guilty.  At arraignment they plea guilty as charged, but do they receive their deferred sentence?  Unfortunately, the answer depends on the Court.  In a busy college town, the Court may simply move the student along, entering the conviction as charged with no deferred sentence.  Next time that student is caught, they lose their driver’s license and can’t drive to class or make it to work.  Just walking into Court and falling on the sword is foolish when resolving an M.I.P. charge in Michigan.  It would be far less painful to hire an attorney to secure the deferred sentence.

As mentioned above, a conviction for M.I.P. may also result in a jail sentence.  Long gone are the days when an offender paid a fine and was on his way.  But there is a catch; a jail sentence may be imposed for a second or subsequent M.I.P. conviction, but only after the defendant fails a term of probation.  Normally a judge is allowed to immediately incarcerate a defendant for a misdemeanor conviction.  In short, for M.I.P. convictions, a probationer has to screw up on probation before they have a stay in the county hotel.

The Michigan Legislature’s desire to be tough on minors drinking alcohol has resulted in the Michigan Court and Federal Courts finding portions of Michigan’s M.I.P. statute unconstitutional.  The problem with the M.I.P. statute is there is a section that permits a police officer to compel a young person to take a preliminary breath test(PBT) when the officer finds reasonable cause for a minor drinking alcohol.  In short, the statute expressly permits a warrantless search that doesn’t conform with any exceptions to the warrant requirement for a search.  Warrantless searches are disfavored by the Courts, as a result,  the M.I.P. statute violates the Fourth Amendment.  People v Cloadhury, 285 Mich App 509, 775 NW2d 845 (2009).

That’s right, the Michigan Legislature has passed a law that violates the State and Federal constitution, all in the name of catching minors drinking alcohol.  Did the Legislature push the envelope and provide law enforcement tools to catch rapist, murders, or arsonist?  No they didn’t, but when it comes to those kids drinking beer, well let’s just forget about the Fourth Amendment and catch those reprobates.

So as it stands today, PBT results pursuant to an M.I.P. conviction should be suppressed from being introduced at trial, unless the defendant consents to taking the test.  However, the legislature is back at work putting the finishing touches on a new bill.

In conclusion, a conviction for minor in possession of alcohol in Michigan is no slap on the wrist.  Young adults need to appreciate that an M.I.P. is serious business, and not something they should take care of on their own.  Since the Michigan Legislature has already produced one law that violates our Constitution, thereby demonstrating real zeal for the issue, there is no reason to believe that the punishment for under age drinking will lighten up anytime soon.

Matthew Benedict 231-883-4170

www.benedictlawfirm.com

Leave a Reply


6 + = seven

CommentLuv badge