Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.
Statute: MCL 333.7403(2)(b)(i)
Crime Group: Controlled Substance
Sentence Class: D
Minimum Sentence: 0 Months
Maximum Sentence1: 120 Months (10 years)
Maximum Fine: $15,000.00
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:
(b) Either of the following:
(i) A substance described in section 7212(1)(h) or 7214(c)(ii) is guilty of a felony punishable imprisonment for not more than 10 years or a fine of not more than $15,000.00, or both.
Controlled substance offenses in Michigan are extremely complicated; there are many ways one can violate a controlled substance statute. A conviction for specifically violating MCL 333.7403(2)(b)(i) means the defendant has knowingly, or intentionally possessed a substance containing methamphetamine.
To convict a defendant of possession of methamphetamine, the prosecution must establish all elements of the crime beyond a reasonable doubt. This means that all other reasonable explanations for a defendant’s conduct have been eliminated. In order to meet this burden the prosecution must show: first, the defendant possessed a controlled substance as classified in MCL 3212(1)(h) or 333.7214(c)(ii) (ecstasy, MDMA, or any substance containing methamphetamine); secondly, the substance was indeed ecstasy, MDMA, or a substance containing methamphetamine; thirdly, the defendant must have known (s)he was possessing the substance; fourth, the substance was not obtained with a valid prescription given to the defendant; and finally, that even absent a prescription the defendant was not authorized to possess the substance.
Most frequently, the issue at trial becomes whether the defendant knew (s)he was in possession of a controlled substance. This is especially true especially where a defendant was in control of another person’s property.
This charge carries one of the harshest penalties for drug offenses in Michigan: whereas most drug offenses have a maximum sentence of five years in prison or less, possession of methamphetamine carries a much higher ten-year maximum sentence. Occasionally, the prosecution will allow a defendant charged with this crime to plea to “use of a controlled substance”, a misdemeanor with a maximum sentence of one year in the county jail. Whether or not such an offer can be obtained will depend on the specific facts of a case.
A defendant with no previous drug convictions on his/her record may be eligible for a deferred sentence under MCL 333.7411 (sometimes referred to as “7411 probation”). This allows the court, at its discretion, to defer sentencing a defendant until the defendant has completed a probationary period (which may
include some jail time). If, at the end of the probation, the defendant has successfully completed the probation, the charges will be dropped and no record will remain with the defendant. However, if the defendant violates the order of probation, the probation will be revoked and the defendant will be sentenced without a trial and the conviction will enter. Michigan only allows one diversion under this statute during the lifetime of a defendant; if a defendant has been sentenced under 7411 previously, then (s)he will not be eligible for it a second time. If a defendant has any drug conviction in the past (s)he will also not be eligible for 7411.
In some cases, a defendant who is between the ages of 17 and 21 (or between 21 and 24 years of age with approval from 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).
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. For these reasons, the sentence of two defendants charged with the exact same crime can be vastly different, even under similar circumstances. All drug-related convictions in Michigan also result in a mandatory driver’s license suspension, unless the defendant is sentenced to prison.
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 (Manufacuring/Delivery of Methamphetamine, MCL 333.7401(2)(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 180 months (15 years); for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence raises to 240 months (20 years); and a defendant with three or more prior felonies or attempted felonies (“HO4”) faces a maximum sentence of Life in prison.
This site and all contents ©2020 Shelton Legal Services, PLLC (except where otherwise indicated) • All Rights Reserved
Information presented on this site is intended for educational purposes only and does not constitute—and should not be considered a substitute for—legal advice. Neither use of this website nor communications through it (including but not limited to messages in forums or answers in the “Ask a Lawyer” section) create an attorney-client relationship. For legal assistance, contact a lawyer.