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Michigan MIP Law Changes for 2018 - Civil Infraction - Long-Term Consequences

By Jonathan A. Paul posted 12-19-2017 20:14

  
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.
  1. Go plead responsible and put an MIP on your public record and do community service, counseling etc
                    or
        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
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