Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.
Statute: MCL 333.7403(2)(a)(v)
Crime Group: Controlled Substance
Sentence Class: G
Minimum Sentence: 0 Months
Maximum Sentence1: 48 Months (4 years)
Maximum Fine: $25,000.00
Jury Instructions: MCJI2d 12.5
Sex Offender Registration Required: No
(1) A person shall not knowingly or intentionally possess a controlled substance, a controlled substance analogue, or a prescription form unless the controlled substance, controlled substance analogue, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article.
(2) A person who violates this section as to:
(v) Which is in an amount less than 25 grams of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both.
More people are convicted of Possession of a Cocaine/Heroin (Less than 25 Grams) in Michigan every year than any other charge. To convict a defendant of this charge, the prosecutor must prove that the defendant possessed any amount of the controlled substance (even trace amounts can be charged) less than 25 grams, knew that (s)he possessed the drug, and did not have some kind of special legal permission to have it. Heroin, as well as both powder cocaine and “crack” cocaine, are covered under this statute.
The most frequent issues that come up during trials are whether the defendant actually possessed the drugs, and whether the defendant knew that (s)he had the drugs in question. In a few cases, the issue of whether or not the substance in question was actually the controlled substance charged may also be disputed. These cases are few and far between, however.
Prosecutors frequently allow defendants who are charged with this count to plead to the lesser charge of “Use of a Controlled Substance” (MCL 333.7404), a misdemeanor with a maximum jail sentence of one year. Defendants who do not have prior drug convictions may also be granted a deferred sentence under MCL 333.7411, which allows the judge to put the defendant on probation without a conviction being entered. If a defendant on a “7411 probation” completes the probation successfully, the case is dismissed without a conviction entering. However, this type of outcome can only be offered once in the defendant’s lifetime, and if the defendant fails to successfully complete the probation, the judge can enter a conviction on the original charge without a trial. A similar statute, the Holmes Youthful Trainee Act (“HYTA”, MCL 762.11), is available for defendants who were older than 16 but less than 21 years of age (or between 21 and 24 years of age with approval from the prosecutor) at the time of the offense. Unlike “7411”, HYTA can be granted by a judge as many times as the judge wants (there is no “one per lifetime” limitation, although many judges do have a “one HYTA” policy). A deferment under HYTA does not preclude a person from seeking 7411 probation in subsequent cases
A defendant convicted under this statute will typically be sentenced according to the Michigan sentencing guidelines. Because these guidelines consider both the nature of the current crime and the past record of the defendant—and because the guidelines are “advisory only” and judges are not required to follow them—it is impossible to predict a likely sentence without taking a look at the specific facts of a defendant’s case and reviewing the past record of a defendant, and even then such predictions are an “educated guess” at best. While fines and probation are common, many defendants are also sentenced to serve time in the county jail. It is rare for first-time offenders to receive sentences exceeding 12 months, which would require the defendant to go to prison. All defendants who are convicted under this statute (or who plead guilty under MCL 333.7411 or HYTA) are subject to at least a 6 month suspension of their driver’s license unless sentenced to jail. (A prior conviction on a drug charge within seven years results in a mandatory suspension of the license for one year.)
It should also be noted that if the defendant delivered or intended to give some or all of the drug in question to another person, there is the potential for a much more serious charge (Possession with Intent to Deliver a Controlled Substance, MCL 333.7401(20)(a)(iv)). This charge carries a maximum sentence of $25,000.00 in fines and up to 20 years in prison. A defendant can be charged with this crime even if (s)he only intended to “share” the drugs, regardless of whether there was any intent to sell the drugs.
1Maximum sentence shown is for a first-time felony offender. Prior felonies make a defendant liable for “Habitual Offender” (“HO”) sentencing enhancement. Thus, for a defendant with one prior felony or attempted felony (“HO2”), the maximum sentence raises to 72 months (6 years); for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence raises to 96 months (8 years); and a defendant with three or more prior felonies or attempted felonies (“HO4”) faces a maximum sentence of 15 years in prison. Additionally, defendants with prior convictions for drug offenses—even in other jurisdictions—are subject to doubling of the maximum fines and imprisonment.
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