What Diversion, 7411 and Deferred Sentences Are in Michigan

The words you heard in court

Someone said "7411," "deferral," "diversion" or "delayed sentence," and it sounded like the case might go away. These words are not interchangeable. A deferral is created by a statute and ends, if you finish it, with the court dismissing the case without a conviction. A delayed sentence postpones sentencing but does not by itself promise a dismissal. A specialty court is a supervised treatment program run by a court. A prosecutor diversion program is something a prosecutor’s office runs under its own local rules.

This page is general information about Michigan law. Whether any of these fits depends on the exact charge, your record and the court, so talk to a lawyer about your own case before you plead to anything.

The 7411 drug deferral

MCL 333.7411(1) applies to a person with no earlier drug conviction under Michigan’s controlled substance laws or any other state’s or federal drug law. After a guilty plea or a finding of guilt, the court may, with your consent and without entering a judgment of guilt, put you on probation. The probation must include a supervision fee and may include a drug treatment court. If you finish, the court "shall discharge" you and dismiss the case, and, except as otherwise provided by law, the dismissal is not a conviction for disqualifications imposed by law. Only one 7411 dismissal is allowed per person.

It covers only certain charges. Under MCL 333.7411(1) those are possession under MCL 333.7403(2)(a)(v), (b), (c) or (d), which takes in less than 25 grams of a schedule 1 or 2 narcotic or cocaine and the lower-schedule drugs; use under MCL 333.7404; and a second imitation-substance offense. It does not reach delivery, manufacture, possession with intent to deliver, or possession of 25 grams or more of a narcotic or cocaine. It does not apply to OWI, which is a Vehicle Code offense, not a Public Health Code one.

The court proceedings are public, but under MCL 333.7411(2) and (3) the record is closed during the deferral and, after a dismissal, the State Police keep only a nonpublic record. Courts, police, prosecutors, the Department of Corrections, the state human services agency for child protection work, and the commission that licenses police officers can still see it for the purposes the statute lists. The site’s 7411 drug deferral page and drug crimes page cover drug charges in more depth.

The domestic assault deferral, HYTA and two narrow deferrals

MCL 769.4a(1) covers a guilty plea or finding of guilt for domestic assault under MCL 750.81 or aggravated domestic assault under MCL 750.81a, by a person never convicted of an assaultive crime, against a spouse, former spouse, person you share a child with, dating partner or household member. It requires your consent and the prosecutor’s, given "in consultation with the victim." Under MCL 769.4a(4) the court must enter the conviction if you commit an assaultive crime during probation or violate a counseling or no-contact order. A dismissal still counts as a prior conviction if you are charged with domestic assault again, MCL 769.4a(5), and only one is allowed. See the domestic violence deferral page and the first-offender deferral explained.

HYTA, under MCL 762.11, works in a similar way for an offense committed on or after the 18th birthday and before the 26th, but it excludes traffic offenses, life felonies, major drug offenses and most sex offenses. It is explained in what HYTA is.

Two more deferrals are narrow. MCL 750.350a(4) covers a parent charged for the first time with taking or keeping a child from the other parent. MCL 750.430(9) covers a licensed health professional charged with practicing while impaired, where no patient was harmed, with the prosecutor’s consent.

A delayed sentence is not a deferral

Under MCL 771.1(2), in any case where probation is allowed, the court may delay sentencing for up to 1 year to give you a chance to show you deserve probation or other leniency. The court must enter an order stating the reason. Your plea or verdict stands, and the statute says the court keeps the power to sentence you at any time during the delay. It does not provide for a dismissal. What happens at the end depends on the judge and any agreement on the record.

Probation, and so a delayed sentence, is not available under MCL 771.1(1) for murder, treason, first- or third-degree criminal sexual conduct, armed robbery or a major controlled substance offense. How a delayed sentence compares with jail and ordinary probation is in probation vs. jail vs. delayed sentence.

Specialty courts and prosecutor diversion

Specialty courts are treatment programs that a court may choose to set up; MCL 600.1062(1) says a circuit or district court "may adopt" a drug treatment court, so not every court has each type. No one has a right to be admitted, MCL 600.1064(1). A person on HYTA, 7411 or a 769.4a deferral may also be admitted to a drug treatment court, MCL 600.1064(2), and the mental health and veterans court chapters say the same. The main types are:

• Drug treatment court, Chapter 10A, MCL 600.1060 and following. With the prosecutor’s agreement, MCL 600.1076(4) allows a first-time participant to have the case dismissed, but not if the charge is a traffic offense.
• DWI/sobriety court, MCL 600.1084. For a traffic offense such as OWI, MCL 600.1070(1)(b)(ii) requires the court to enter the judgment of guilt at admission. See sobriety courts.
• Mental health court, MCL 600.1090 and following, with admission rules in MCL 600.1093.
• Veterans treatment court, MCL 600.1200 and following, for veterans with at least 180 days of active duty, with admission rules in MCL 600.1203.
• Prosecutor diversion. These programs are run by a prosecutor’s office, not created by the statutes above, and each office sets its own eligibility. Ask the prosecutor’s office or your lawyer whether one exists for your charge; the site has a short Kent County diversion page.

What a finished deferral still counts for, and what to do now

A dismissal after a deferral is not the same as a clean slate. MCL 780.621(2) treats a case deferred and dismissed under HYTA, 7411, 769.4a, 750.350a, 750.430 or a drug or veterans treatment court as a misdemeanor conviction when deciding whether you may set aside other convictions; see what expungement means. Federal immigration law defines conviction in its own way, so a non-citizen should ask about that before any plea.

Each deferral above requires a guilty plea or a finding of guilt first, plus the consents its statute names, so raise it with your lawyer before you enter any plea. Get the exact charge from your paperwork and a list of any earlier cases, including old deferrals, and see plea vs. trial for how that decision is made. The office of Attorney Shawn Haff practices criminal defense in Michigan state courts and offers a free consultation at 616-438-6719, answered 24 hours a day.