Minor in Possession of Alcohol: An end to draconian probation?

Several Oakland County judges have employed draconian probationary terms on minors prosecuted for the charge of minor in possession of alcohol (MIP).  A first offense MIP carries no jail.  It is simply not permitted.  Lawmakers drafted the law to provide a break to minors busted on a first offense.  The minor may have to undergo substance abuse counseling and perform community service, but fines are nominal and the statute provides for absolutely no jail.

Nonetheless, horror stories are reported out of the Bloomfield and Rochester Hills district courts.  This includes repeated attempts by certain judges to circumvent the Legislature’s policy of “no jail” for first offenses.  These district court judges employ the court’s contempt powers, claiming that the minor is in contempt of court for failing to follow the court’s order.

In 2008, Judge Mark A. Goldsmith issued an order out of the Oakland County Circuit Court holding that this policy was not lawful.  The judge held that “a probation violation in and of itself does not amount to a new crime.  People v Kaczmarek, 464 Mich 478, 482-83; 628 NW2d 484 (2001) (on violating probation “the probationer is neither burdened with a new conviction nor exposed to punishment other than that to which he has already been exposed”); People v Vancil, 186 Mich App 665, 666; 465 NW2d 49 (1991) (“the sentence imposed upon a probation violation must be in accordance with the permissible sentence for the underlying offense itself”).”

The higher court’s order should have put an end to this practice, but the lower courts tried to circumvent the ruling!  Ignoring the case because it was not binding in other identical cases, the judges inspired several more appeals to the Oakland County Circuit Court.  In other words, these judges continued to jail minors in violation of the clear statutory language!

Central in this fight, my good friend and fellow defense lawyer Jim Amberg did what came naturally to an aggressive defense lawyer:  He sued ’em!  The story caught wide-spread attention, and the Detroit News and Free Press ran stories on Jim’s lawsuit against the judges in April 2009.  These stories can be found on Jim’s webpage, www.oaklandcountymiplawyer.com.

Jim Amberg’s lawsuit did nothing to slow these zealous judges down, however, and I watched in dismay as Jim literally worked his butt off and figuratively beat his head against the proverbial brick wall.

In the latest chapter of the “MIP War” as it been coined, the other Jim central to the fight has won a huge victory.  While Jim Amberg, the young hotshot out of Bloomfield was doing his thing, Jim Williams out of Troy was fighting the judges too.  Jim Williams is a “senior attorney” to use a polite phrase, and he’s another great lawyer.  I would link you to his website, but he does not have one because websites aren’t drafted using quills.  He can be reached at (248) 528-1111.

Jim Williams has been fighting the Bloomfield judges for 3 years on the MIP War, and a few days ago he received a big fat victory.  The Michigan Court of Appeals (which is higher than the Oakland County Circuit Court that issued the prior 2008 order) held that a first time offender for MIP cannot be placed on probation!  A copy of the decision is available on-line here.

I am sure that this is frustrating to the district court judges who want to put kids in jail.  Minors will continue to experiment with alcohol, and I am sure that these judges felt that their hawkish policies would serve as a deterrent to other kids.  Unfortunately, high schoolers are largely oblivious to local district court practices, and the word never got out to them.  These judges may have thought also that their illegal jail sentences might serve as a wake-up call to kids who violated probation.  Early intervention is always key to substance abuse problems, after all.  Nonetheless, these judges forced the issue to the Court of Appeals, and these judges were proven wrong.  Let’s hope the judges follow the Court of Appeals ruling.

Kudos to the two Jims for their remarkable efforts.  They are both truly Constitutional Warriors!