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

 

Manufacture/Delivery/Possession with Intent to Deliver Marijuana (Less than 5 KG)

Statute: MCL 333.7401(2)(d)(iii)
Crime Group: Controlled Substance
Sentence Class: F
Minimum Sentence: 0 Months
Maximum Sentence1: 48 Months
Maximum Fine: $20,000.00
Jury Instructions: MCJI2d 12.01, 12.02, 12.03
Sex Offender Registration Required: No

Statutory Language:

(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.

(2) A person who violates this section as to:

[…]

 (d) Marihuana or a mixture containing marihuana is guilty of a felony punishable as follows:

[…]

         (iii) If the amount is less than 5 kilograms or fewer than 20 plants, by imprisonment for not more than 4 years or a fine of not more than $ 20,000.00, or both.

Discussion:

Convictions for the crime of “Manufacture, Delivery, or Possession with Intent to Deliver Marijuana” are very common in Michigan; the only felony of which more people are convicted is “Possession of Cocaine (Less than 25 Grams)”. To convict a defendant of this charge, the prosecutor must prove that:

  1. The defendant possessed marijuana (either alone or in a mixture);
     
  2. That the defendant was either planning to deliver the marijuana to someone or was growing/preparing it;
     
  3. That the defendant knew the substance was marijuana;
     
  4. That the defendant had over the specified amount of marijuana (for this particular charge, more than 5 kilograms or twenty plants, but less than 45 KG/200 plants); and
     
  5. That the defendant did not have the legal right to manufacture or possess the marijuana (in other words, that the defendant was not a certified medical marijuana patient or provider).
     

There are a number of issues that are frequently litigated at trial with this charge. Among the most common issues are the amount of marijuana involved (prosecutors often try to exaggerate the amount involved by counting packaging, unusable material, or dead plants as part of the quantity), whether the defendant had a valid medical marijuana patient or provider card, whether the defendant knew (s)he had marijuana, and whether the marijuana actually was in the possession of the defendant.

Prosecutors frequently allow defendants who are charged with this count to plead to the lesser charge of “Possession of Marijuana” (MCL 333.7403(2)(d)), a misdemeanor with a maximum jail sentence of one year and/or $2,000.00 in fines. Alternatively, a defendant who is between the ages of 17 and 21 (or between the ages of 21 and 24 with consent of the prosecutor) may be eligible for sentencing under the Holmes Youthful Trainee Act (“HYTA”, MCL 762.11). HYTA is a deferred sentencing program that recognizes that when people are young, they often make stupid mistakes that should not haunt them for the rest of their lives. If a defendant is sentenced under HYTA, the court allows the defendant to offer a guilty plea, but takes the plea “under advisement” without entering it as a conviction. The court will then place the defendant on probation for a term set by the court. A defendant who successfully completes the probation will have all charges dropped and no public record of the offense will remain. However, a defendant who does not successfully complete the HYTA probation will have his/her probation revoked, the conviction will be entered, and a new (usually harsher) sentence will be imposed without a trial. HYTA status may 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. (It should be noted that a deferred sentence under MCL 333.7411—a program similar to HYTA—applies only to simple possession charges, and is not available for defendants charged with manufacturing, delivering, or possessing with intent to deliver marijuana or any other controlled substance.)

A defendant convicted under this statute will typically be sentenced under the Michigan sentencing guidelines, and it is impossible to say for sure what the sentence will be in any particular case because sentences are fact-specific. 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 and who are not sentenced to prison are subject to at least a 6 month suspension of their drivers licenses. (A prior conviction on a drug charge within seven years results in a mandatory suspension of the license for one year.) The court has no discretion on drivers license sanctions.

The Michigan Medical Marihuana Act often comes into play with defendants who are charged with the Manufacture, Delivery, or Possession with Intent to Deliver Marijuana. Under the Michigan Medical Marihuana Act, a qualifying patient can possess up to 2.5 ounces of usable marijuana and can have up to 12 plants (as long as they are in a locked, enclosed facility). A licensed caregiver may be (but does not have to be) a medical marijuana patient, and may also provide medical marijuana for up to five other qualifying patients. Thus, a caregiver may possess the same amount of marijuana (up to 2.5 ounces of usable marijuana and up to 12 plants) for each of his/her patients. Frequently, patients and/or caregivers exceed the amount of marijuana they are entitled to possess, or police allege that this is the case (whether it is or not). There are also a number of nuances that can make possession or manufacture of marijuana by someone who has a medical marijuana card (or who has applied for one) illegal despite the person being a “qualifying patient”. As this is a relatively recently enacted law, a number of legal questions remain unanswered and new issues are decided by the courts on a regular basis.

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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