Common Crimes

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

Manufacture or Possession with Intent to Deliver a Schedule 1 or 2 Controlled Substance (less than 50g)

Statute: MCL 333.7401(2)(a)(iv)
Crime Group: Controlled Substance
Sentence Class: D
Minimum Sentence: 0 Months
Maximum Sentence ¹: 240 Months (20 Years)
Maximum Fine: $25,000.00
Jury Instructions: MCJi2d. 12.1 / MCJi2d. 12.2 / MCJi2d. 12.3
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:

[ . . . ]

(iv) Which is in an amount less than 50 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $ 25,000.00, or both.

Discussion:

Most people find Michigan’s statutes related to controlled substances extremely difficult to read and interpret because they frequently refer to definitions or lists of substances contained elsewhere, forcing the reader to dig through another whole set of statutes to find the correct reference. That often accomplishes little or nothing, because the definitions are often phrased (for good reason) in scientific, chemical descriptions that require a degree in chemistry to interpret: “4-cyano-2dimethylamino-4” or “1-methyl-4-phenylpiperidine-4-carboxylic acid” or “4-cyano-1-methyl-4-phenylpiperidine Pethidine-Intermediate-B”, for example. Most of these chemical formulas simply refer to artificially-created versions of more simple substances. In the case of MCL 333.7401(2)(a), the important thing to remember is that it applies primarily to cocaine, heroin, fentanyl, some amphetamines, and their chemical equivalents. (It should be noted that for this reason, prosecutors often label a charge as “Possession with Intent to Distribute Heroin1” when the charge is really about cocaine, or “Possession with Intent to Distribute Cocaine” when the charge is really about heroin. It makes no practical difference in terms of the potential penalties how the charge is labeled; both charges are identical. However, judges usually consider heroin charges more serious than cocaine charges—and fentanyl-related charges even more serious—and frequently make bond decisions based on how the charge is titled, so it is always good to make sure the judge is aware that the charge actually involves cocaine if the charge is described as something else.)

For purposes of Michigan’s statutes, it makes no difference if a defendant actually manufactured the drugs, actually delivered them to someone else, or merely possessed them and intended to give them to someone else. It also does not matter if the intent was to sell the drugs, give them away, or share them. This is why a simple “Possession of Cocaine” charge can easily be elevated to the far more serious “Possession with Intent to Deliver Cocaine” charge if a defendant tells the police, “I was holding it for my friend”: the defendant has now admitted to possessing the drugs, and intending to give them to someone else. This is all that is needed to raise a low-level felony “possession” charge with a four-year maximum sentence to a high-level felony “possession with intent to deliver” charge with a 20-year maximum sentence.

On these types of charges—as with all crimes—the prosecution must prove its case beyond a reasonable doubt. This burden is placed on them to make sure that each and every element of a crime has been established in such a way as to rule out any other reasonable explanations for the evidence. If the prosecutor fails to do so, the defendant can not be convicted. Even if all but one element is established—but the prosecution can not prove that one elements of the charge—then the defendant must be acquitted of the charge.

For this specific charge, the prosecution must establish four elements:

First, that the defendant manufactured or delivered a controlled substance (or possessed the controlled substance with the intent to deliver it);
Second, that the substance was cocaine, heroin, fentanyl, or another chemical listed under MCL 7214(a)(iv);
Third, the defendant knew (s)he that the substance was cocaine, heroin, fentanyl, or another chemical listed under MCL 7214(a)(iv);
Fourth, the defendant was not legally authorized to possess the substance.

While many of these cases result from “sting” operations where a defendant sold drugs to an undercover officer, many of these cases are also simple “possession” cases that have been overcharged. (This is often done to pressure defendants into pleading to a simple “possession” charge without the benefit of a diversionary program like the Holmes Youthful Trainee Act or MCL 333.7411, which will be addressed below, or to pressure a defendant into providing information on other people the police can then arrest.) Prosecutors often charge “possession with intent to deliver” in cases based on nothing more than the quantity of the drugs in question or the way they are packaged. In these cases, the most difficult element for them to prove is the “intent” element. In other cases—where drugs are found hidden inside a borrowed car, for instance—the “knowledge” element of the charge becomes critical. Because of the broad language of this statute, every case is unique and must be evaluated individually for strengths and weaknesses

These cases are most often resolved through plea bargains. The most common resolution is a plea to the lesser charge of “Possession of Cocaine/Heroin/Fentanyl” (a low-level felony with a maximum sentence of four years in prison). Prosecutors will also offer a plea to “Attempted PWID/Delivery/Manufacturing of Cocaine/Heroin/Fentanyl”. Such offers have no real benefit to a defendant; under MCL 333.7416, the penalty for attempting to violate a controlled substances offense is the same for actually committing the offense.

Other than the significantly higher penalties, there are other notable differences between a simple “possession” charge and a “PWID”, “delivery”, or “manufacturing” charge. Among these differences is that the statutory diversionary program under MCL 333.7411 can not be used for these higher-level offenses. MCL 333.7411 (often referred to simply as “7411”) allows a defendant who pleads guilty to a “possession” or “use” of drugs charge (or who is found guilty of such a charge after a trial) to be placed on probation without a conviction being entered. (The defendant must not have previously been convicted of any other drug charges, or previously had a probation under this statute.) If the defendant completes the probation successfully, then the case is dismissed and no conviction enters. Prosecutors (and some judges) have a policy that they will not agree to such a probation under 7411 for a “possession” or “use” charge if that charge was reduced from the higher “PWID/Delivery/Manufacturing” charge. Because of this, defendants charged with “PWID/Delivery/Manufacturing” may not have access to 7411, even if the simple “possession” charge would have been more appropriate on the facts of the case. Addressing this issue requires a great deal of effort from defense counsel and, even with the best efforts, often ends without any success.

Similarly, defendants charged with this offense are not eligible for the diversionary program creaed under the “Holmes Youthful Trainee Act” (“HYTA”). This program works much like 7411, but is specific to age rather than the type of crime. (Only those 24 years of age or younger at the time of the offense are eligible.) However, HYTA excludes defendants charged with “major controlled substances offenses” from being eligible, and this charge is considered a “major controlled substance offense” under MCL 761.2. And, as with 7411, many prosecutors and judges refuse to allow HYTA probation on “possession” or “use” charges when the defendant was initially charged with a higher-level offense.

A defendant who is found guilty of this charge will be sentenced according to the Michigan sentencing guidelines. These guidelines take into consideration various factors related to the crime itself, as well as the defendant’s prior record. For these reasons, the sentences of two defendants charged with the exact same crime can be vastly different.

As with all controlled substance offenses, a conviction under this statute also results in an automatic driver’s license suspension of at least six months, although the court may order the license to be merely “restricted” after the first thirty days. If there is one or more prior controlled substance convictions within the prior seven years, then the mandatory suspension lengths double. (The court may also not issue order the defendant to have a restricted license during the first 60 days.)

A restricted license only allows driving:

In the course of the person’s employment or occupation;
To and from any combination of the following

The person’s residence,
The person’s work location, and
An alcohol or drug education or treatment program as ordered by the court;

The court probation department;
A court-ordered community service program;
An educational institution at which the person is enrolled as a student; and
A place of regularly occurring medical treatment for a serious condition for the person or a member of the person’s household or immediate family.

These license sanctions do not apply to defendants who are sentenced to imprisonment for more than a year. (After all, they will not be driving during that year, so the suspension would be meaningless.)

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 360 months (30 years); for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence raises to 480 months (40 years); and a defendant with three or more prior felonies or attempted felonies (“HO4”) faces a maximum sentence of life. 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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