Drug offenses in Michigan can be prosecuted by State prosecutors, cities, or in Federal Court. This blog does not address Federal drug charges.
The basic elements of the crime of possession of a controlled substance are:
(1) The Defendant possessed a controlled substance;
(2) The substance possessed was a mixture containing (cocaine, heroin, or whatever the drug in question is);
(3) The Defendant knew that he or she was possessing (cocaine, heroin, or whatever the drug in question is);
(4) The substance was not obtained by a valid prescription given to the Defendant;
(5) The Defendant was not otherwise authorized to possess the substance.
The penalties vary based upon the weight and nature of the substance possessed. Drugs are classified as schedule 1, 2, 3, 4, or 5, which makes a difference as to how a particular drug crime is prosecuted. Even if the substance is mostly a cutting or mixing agent, the cutting or mixing agent is counted towards the total weight. Any amount visible to the naked eye is sufficient for the charge to be authorized. A lessor offense of possession of a controlled substance is Unlawful Use of a Controlled Substance, which is usually a 1 year misdemeanor. Some city prosecutions, however, make Unlawful Use of a Controlled Substance a 90 day misdemeanor. In some counties, a plea bargain to Unlawful Use of a Controlled Substances can be negotiated under the right circumstances from simple possession charges.
Common drug possession charges and penalties include the following:Possession of a Controlled Substance Less than 25 Grams (such as heroin or cocaine) is a 4 year felony; Possession of Between 25 and 50 Grams(such as heroin or cocaine) is a 4 year felony; Possession of more than 50 Grams but less than 450 Grams (such as heroin or cocaine) is a 20 year felony; Possession of more than 450 Grams but less than 1000 Grams(such as heroin or cocaine) is a 30 year felony; Possession of over 1000 Grams (such as heroin or cocaine) is a life maximum offense. Other drug possession charges include: Possession of Ecstasy or MDMA (which includes methamphetamine) is a 10 year felony. Possession of GBL (a date rape drug) is a 2 year felony; Possession of more than 12 grams of Ephedrine or Pseudoephedrine (methamphetamine ingredients) is a 2 year felony; Possession of an Analogue Controlled Substance (usually prescriptions such as xanax, valium, etc.) is a 2 year felony. Possession of Marijuana is a 1 year misdemeanor, or less if charged as a city offense depending upon the jurisdiction.
Possession of a controlled substance can be actual or constructive possession. Actual possession means that the substance is in the Defendant’s hand, pocket, or otherwise on his or her person. Constructive possession means that the Defendant had dominion and control over the substance, but did not actually possess the substance. An example of constructive possession would be if a police officer arrested a Defendant in his home, but located cocaine in a search of the glove compartment of his car. Possession can also be joint, which means that more than one person has the right (albeit, not in a legal sense) to possession the item in question.
When the intent to deliver becomes involved, the seriousness of the offense increases based upon the weight involved, and the schedule of the drug. The same considerations stated above in reference to Possession of a Controlled Substance apply here. Generally in terms of proofs the Prosecution must show the same elements listed for Possession of a Controlled Substance plus Manufacture, Delivery or Intent to Deliver.
Delivery means that the Defendant transferred or attempted to transfer the controlled substance to another person knowing that the controlled substance in question was involved, and intending to transfer it to another person. This has to go beyond just preparing to commit a crime, to a point where the crime would have been completed but for some sort of interruption that occurred. Being merely present where a crime has been committed, without anything more, is not enough to support a conviction for a drug offense.
Common drug possession with intent to deliver (PWID) or drug delivery charges and penalties include the following: Delivery or PWID Less than 50 Grams (such as heroin or cocaine) is a 20 year felony; Delivery or PWID of more than 50 Grams but less than 450 Grams (such as heroin or cocaine) is a 20 year felony; Delivery or PWID of more than 450 Grams but less than 1000 Grams (such as heroin or cocaine) is a 30 year felony; Delivery or PWID of over 1000 Grams (such as heroin or cocaine) is a life maximum offense. Other drug delivery or PWID charges include: Delivery or Manufacture of Ecstasy or MDMA is a 20 year felony; Delivery or Manufacture of GBL is a 7 year felony; Delivery of a Controlled Substance or GBL with intent to commit Criminal Sexual Conduct is a 20 year felony;Delivery of a Controlled Substance causing Death is a life maximum felony;Delivery or Manufacture of an Analogue Controlled Substance is a 15 year felony; Delivery or Manufacture of an Imitation Controlled Substance is a 2 year felony.
A physician or pharmacist who dispenses drugs illegally can also be prosecuted under Michigan’s drug statutes. A conviction will create serious licensing issues for a physician or pharmacist, along with the possible incarceration. A person who knowingly aids and abets in the possession, manufacture, or delivery of a controlled substance or marijuana can be prosecuted to the same degree as the main person involved in the offense.
Marijuana is treated differently in Michigan. Delivery or Manufacture of Marijuana is a 4 year felony. This includes less than 5 Kilograms of Marijuana or 20 Plants of Marijuana. Delivery or Manufacture of more than 5 Kilograms but less than 45 Kilograms of Marijuana is a 7 year felony. Delivery or Manufacture of 45 Kilograms or more of Marijuana is a 15 year felony. As stated before, Possession of Marjuana can be a 1 year misdemeanor or less depending upon where the case is prosecuted. A defense to marijuana cases, if applicable, is the Michigan Medical Marijuana Act that apply to caregivers and patients.
Evidence of intent to deliver is often may be proven by direct evidence (Examples of this include: the testimony of an undercover police officer that participated in a drug buy; observations made by a police officer of a hand to hand drug transaction, etc.), or circumstantial evidence (Examples of this include: proof based upon the manner in which the drugs are packaged; the quantity of the drugs; the presence of a scale, packaging materials; cutting or mixing agents; money in denominations that support sales; lack of drug use paraphernalia, etc.). Often in drug delivery cases a police officer will be qualified and testify as an expert witness concerning the intent of the Defendant based upon the totality of the circumstantial evidence.
Sentencing for drug cases are often controlled by the Michigan Sentencing Guidelines. The guidelines quickly escalate as the quantities increase. Possession, Delivery, or Manufacture of large quantities of controlled substances often result in lengthy prison sentences. Major drug offenses are also not subject to expungement or diversionary sentence provisions in Michigan.
For convictions for Possession of a Controlled Substance less than 25 grams, Possession of Analogue Controlled Substances, Unlawful use of a controlled substance, and Delivery or Manufacture of Marijuana involving less than 5 Kilograms or 20 plants, persons 17 years old and younger than 21 years old can request Holmes Youthful Trainee Status (HYTA) to keep the offense off their record. If a Defendant pleads guilty to Possession less than 25 grams of a Controlled Substance, Possession of an Analogue Controlled Substance, Possession of Marijuana, or Unlawful Use of a Controlled Substance he or she can request section 7411 which will also keep the offense off his or her record. 7411 does not apply to delivery, manufacture, or PWID cases. Without the receipt of either HYTA or section 7411, a conviction will result in suspension of driving privileges even if the operation of a motor vehicle had nothing to do with the offense itself.
An experienced criminal defense attorney is needed when it comes to drug cases:
1. An experienced criminal defense attorney can pursue dismissal or suppression of evidence based upon Constitutional grounds when appropriate;
2. An experienced criminal defense attorney can raise necessary defenses such as lack of knowledge, lack of intent, lack of evidence, reasonable doubt, alibi, mistaken identity, and mere presence to possibly gain acquittal or a lessor charge.
3. An experienced criminal defense attorney can sometimes negotiate a plea bargain or sentencing agreement favorable to the Defendant. The criminal defense attorney can argue for HYTA and section 7411 when applicable.
4. An experienced criminal defense attorney can challenge the scoring of Michigan sentencing guidelines to try and lower the potential sentence, and argue for a downward departure from Michigan sentencing guidelines.
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