Common Crimes

Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.

 

Possession of Certain Controlled Substances (Schedule 1, 2, 3, or 4) or Analogues

Statute: MCL 333.7403(2)(b)(ii)
Crime Group: Controlled Substance
Sentence Class: G
Minimum Sentence: 0 Months
Maximum Sentence¹: 24 Months
Maximum Fine: $2,000.00
Jury Instructions: MCJI2d 12.5
Sex Offender Registration Required: No

Statutory Language:

(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:

[*     *     *]

(b)(ii)  A controlled substance classified in schedule 1, 2, 3, or 4 . . . . or a controlled substance analogue is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $ 2,000.00, or both.

 

Discussion:

The laws regarding possession of controlled substances are complicated.  This is especially true in Michigan, where there are many ways a person can possess a controlled substance and be in violation of state law. While there are statutes specific to possession of cocaine, heroin, marijuana, LSD, peyote, and certain other drugs, MCL 333.7403(2)(b)(ii) is the “generic” statute for possession of most other controlled substances (such as dihydrocodeinone, clonazepam, or  ketamine) or “analogues” (substances that may have slightly different chemical compounds than recognized controlled substances, but are designed to have similar effects). Drugs are categorized into four “schedules” by statute. In general, these schedules reflect the recognized medical uses for the drugs and their capacity for addiction and abuse.²

To convict a defendant of this charge, the prosecution must established its case beyond a reasonable doubt. In other words, the prosecution has to rule out all other reasonable explanations for the evidence. The prosecution must show the following:

• The substance was, in fact, a controlled substance classified in schedule 1, 2, 3 or 4;
• The defendant possessed the substance;
• The defendant knew (s)he possessed the substance; and
• The substance was not obtained with a valid prescription given to the defendant (or without some other authorization for the defendant to possess it).

Defenses to this type of charge vary greatly, depending on the individual facts of the case. For instance, the prosecution may find it difficult to prove the defendant knew (s)he possessed a controlled substance if the defendant was controlling the property of another (driving a friend’s borrowed car, holding a friend’s purse, etc.). Or, the defendant may have been handed a mislabeled bottle of pills. Or, the substance may have been found under a car seat where there had been multiple occupants.

In some instances the prosecution will allow a defendant to plea to the charge of “Use of a Controlled Substance.” The penalties for “use” instead of “possession” vary in the fines allowed and the maximum sentence. However, all “use” crimes are classified as misdemeanors, meaning the most jail time a defendant faces is up to 1 year

If a defendant has no previous drug convictions on his/her record, (s)he may be eligible for a deferred sentence under MCL 333.7411. This allows the court, at its discretion, to deter sentencing a defendant until the defendant completes probationary period. At the end of the probation if the defendant has successfully completed it, the charges will be dropped and no criminal conviction will result. However, if the defendant violates the order of probation, the probation will be revoked and the defendant will be sentenced without a trial. Michigan allows only one 7411 probation.  If a defendant has been granted “7411” before, they will not be eligible a second time.  Any prior drug conviction will also render a defendant ineligible.

Additionally, a defendant who is between the ages of 17 and 21 years of age (or between 21 and 24 years of age with approval from the prosecutor) may be eligible for the “Holmes Youthful Trainee Act” (HYTA). This program is very similar to the 7411 probation. It also allows a court, at its discretion, to order the defendant to complete a probation period in lieu of being sentenced. If a defendant successfully completes the probation, the charges will be dropped and the defendant will have no criminal conviction for the offense. A defendant who does not complete probation successfully will be immediately sentenced without a trial and the probation revoked. While this program does not have the one-and-done policy of 7411, many judges will only allow a defendant one chance under HYTA.

A defendant who convicted of “Possession of a Controlled Substance” will 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. For these reasons, the sentences of two defendants charged with the exact same crime may be vastly different. All drug-related convictions in Michigan also result in a mandatory driver’s license suspension, unless the defendant is sentenced to jail.

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 36 months (3 years); for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence raises to 48 months (4 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.

²Michigan law categorizes drugs into the following schedules:
 

Schedule 1 (Substances with high potential for abuse and no accepted medical use in treatment in the United States or lacking accepted safety for use in treatment under medical supervision) Acetylmethadol Difenoxin Noracymethadol Allylprodine Dimenoxadol Norlevorphanol Alpha-acetylmethadol Dimepheptanol Normethadone Alphameprodine Dimethylthiambutene Norpipanone Alphamethadol Dioxaphetyl butyrate Phenadoxone Benzethidine Dipipanone Phenampromide Betacetylmethadol Ethylmethylthiambutene Phenomorphan Betameprodine Etonitazene Phenoperidine Betamethadol Etoxeridine Piritramide Betaprodine Furethidine Proheptazine Clonitazene Hydroxypethidine Properidine Dextromoramide Ketobemidone Propiram Diampromide Levomoramide Racemoramide Diethylthiambutene Levophenacylmorphan Trimeperidine Morpheridine Acetorphine Drotebanol Morphine-N-Oxide Acetyldihydrocodeine Etorphine Myrophine Benzylmorphine Heroin Nicocodeine Codeine methylbromide Hydromorphinol Nicomorphine Codeine-N-Oxide Methyldesorphine Normorphine Cyprenorphine Methyldihydromorphine Pholcodine Desomorphine Morphine methylbromide Thebacon Dihydromorphine Morphine methylsulfonate

Schedule 2 (Substances with high potential for abuse, but with currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions, and abuse of the substance may lead to severe psychic or physical dependence) Raw opium Etorphine Hydrochloride Opium extracts Hydrocodone Opium Fluid-extracts Hydromorphone Powdered opium Metopon Granulated opium Morphine Tincture of opium Oxycodone Codeine Oxymorphone Ethylmorphine Thebaine Cocaine Opium Poppy Opium Poppy Straw Alphaprodine Fentanyl Anileridine Isomethadone Bezitramide Levomethorphan Dihydrocodeine Levorphanol Diphenoxylate Metazocine Methadone Methadone-Intermediate, 4-cyano-2dimethylamino-4, 4-diphenyl butane Moramide-Intermediate, 2-methyl-3-morpholino-1,1-diphenylpropane-carboxylic acid Pethidine Pethidine-Intermediate-A, 4-cyano-1-methyl-4-phenylpiperidine Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate Pethidine-Intermediate-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid Phenazocine Racemethorphan Piminodine Racemorphan Amphetamine Methamphetamine Phenmetrazine Methylphenidate Methaqualone Amobarbital Pentobarbital Secobarbitall

Schedule 3 (Substances with lower potential for abuse than Schedule 1 or 2 drugs, but with currently accepted medical use in treatment in the United States, and abuse of the substance may lead to moderate or low physical dependence or high psychological dependence) Benzphetamine Mediatric tabs Chlorphentermine Mediatric liquid Clortermine Phendimetrazine Edrisal tabs Special formula 711 tabs Genegesic caps Thora Dex No. 1 tab Hovizyme tabs Thora Dex No. 2 tab Mazindol

Schedule 4 (Substances with low potential for abuse, with currently accepted medical use in treatment in the United States, and abuse of the substance may lead to limited physical dependence or psychological dependence) Barbital Flurazepam Chloral Betaine Lorazepam Chloral Hydrate Mebutamate Chlordiazepoxide Meprobamate Clonazepam Methohexital Clorazepate Methylphenobarbital Dextropropoxyphene Oxazepam Diazepam Paraldehyde Ethchlorvynol Petrichloral Ethinamate Phenobarbital Flunitrazepam Prazepam Fenfluramine Diethylpropion Phentermine Pemoline (including organometallic complexes and chelates of pemoline) Cathine d-norpseudoephedrine

 

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