MINOR IN POSSESSION INFORMATION

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Talking Points on Michigan’s New Minor In Possession Law
On April 12, 2004, Governor Jennifer Granholm signed into law Public Act No. 63,
giving Michigan one of the strongest minor in possession (MIP) laws in the country. This
is the first major revision of Michigan’s MIP law since 1998. The changes in the law will
go into effect September 1, 2004.

Important changes in the law include the following:
1. The definition of being “in possession of alcohol” now explicitly includes blood alcohol content (BAC).

The Michigan Court of Appeals [People v Rutledge, 250 Mich App 1, 645 NWrd 333
(2002)] interpreted the current law’s language of “consume” and “possess” to mean
“acts taking place in the present.” Hence, a person could not be prosecuted for still
having in his or her body something that was consumed in the past or that a person
no longer had control over, e.g., during digestion. This new law now prohibits “any
bodily alcohol content.” It is the same language that is used in the zero tolerance law
for a minor driving a car. In addition, the statute states that if a minor drank the
alcohol legally either in Canada or Wisconsin, it is an affirmative defense during a
trial. It is not an issue on citing a minor with MIP. NOTE: The affirmative defense
does not affect the zero tolerance section for the OWI law. It is still illegal for a minor
to drive with a BAC of .02 or more. The exceptions that have existed to this
prohibition continue. They include when a minor is (1) enrolled in a course offered
by an accredited post-secondary educational institution in an academic building of
the institution under the supervision of a faculty member solely for educational
purposes and a requirement of the course. (2) consuming sacramental wine in
connection with religious services at a church, synagogue, or temple.

2. The new law gives judges discretion to use jail time when a youth has a prior MIP conviction AND fails to complete any treatment, screening, or community service activities ordered by the court or fails to pay any fine.

The absence of a provision for jail time has been a problem since the original MIP
law was passed in 1998. Some judges have been unwilling to require education,
treatment, or community service because they have no method of enforcing these
requirements. If the education and community service activities are effectively
structured they may actually have more impact on first time violators than the fine.
This is because the parents often pay the fine, but the youth is required to spend the
time fulfilling the probationary activities.

3. The new law gives a first-time offender the break of not having a misdemeanor record if he/she completes probation requirements.

This law provides for a discharge and dismissal for a first offense. When an
individual who has not previously been convicted of, or received a juvenile
adjudication for, a violation of the MIP laws, the court – without entering a judgment
of guilt and with the consent of the minor – could defer further proceedings and
place the individual on probation. The probation terms and conditions would include
but not be limited to, payment of the costs as provided under the Probate Code and
the Code of Criminal Procedure and payment of a probation supervision fee as
prescribed in the Code of Criminal Procedure. The court will maintain a nonpublic
record of the arrest, admission, and education/treatment/community service
requirements while proceedings are deferred and the individual is on probation.

4. The new law sets up a system with the Secretary of State for tracking first time offenders of the Michigan MIP law and comparable local ordinances.

Beginning September 1, 2004, the clerk of the court shall also forward an abstract of
the court record to the secretary of state if a person has pled guilty to, or offered a
plea of admission in, a juvenile proceeding for a violation of the new law or a local
ordinance substantially corresponding to section 703 of Michigan’s MIP law. The
secretary of state will retain a nonpublic record of an arrest, plea, and discharge or
dismissal. This record can only be furnished to the following: A. to a court,
prosecutor, or police agency upon request for the purpose of determining if an
individual had already used the diversion provision. B. To the Department of
Corrections, a prosecutor, or a law enforcement agency upon request subject to the
following conditions: 1) at the time of the request, the individual was employed by
one of these entities or was an applicant for employment; and 2) the record was
used by the entity only to determine whether an employee had violated his or her
conditions of employment or whether an applicant met criteria for employment.

5. The new law permits 19 and 20 year olds who consumed alcohol legally the option to use this as an affirmative defense. The law now includes a provision for minors who legally consume alcohol in Canada
or Wisconsin to offer this as “an affirmative defense” in a criminal prosecution. This
means that the police may arrest any youth with a BAC of .02 or above. If the youth
can prove in a court of law that he/she consumed the alcohol in a venue or location
where that consumption is legal, the charge will be dismissed. It is not an issue on
citing a minor with MIP. NOTE: The affirmative defense does not affect the zero
tolerance section for the OWI law. It is still illegal for a minor to drive with a BAC of
.02 or more.

Please call 616-915-6576 for a FREE consultation