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 Sentence1: 240 Months (20 Years)
Maximum Fine: $25,000.00
Jury Instructions: MCJI2d 12.1
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:
While possession of a controlled substance without legal authority is a crime, the actual manufacturing or distribution of these substances is a far more serious offense. To convict on this charge, the prosecutor must prove: first, that the defendant manufactured (or intended to deliver to someone else) a Schedule 1 or 2 controlled substance; second, that the substance actually was a Schedule 1 or 2 controlled substance; third, that the defendant knew it was a controlled substance; fourth, that the substance was in a mixture that weighed no more than 50 grams. In some circumstances, a prosecutor may additionally need to prove that the defendant was not legally authorized to manufacture the substance and/or that the defendant was not preparing the substance for his/her own use. Frequently, the question of whether the defendant possessed the intent distribute the controlled substance becomes the biggest hurdle for the prosecution at trial.
Prosecutors will sometimes allow defendants who are charged with this count to plead to the lesser charge of “Possession of a Controlled Substance” (MCL 333.7403(2)(iv)). While the simple “possession” charge is still a felony, the penalties are significantly less severe. Rarely, a Defendant may be allowed to plead to the misdemeanor charge “Use of Controlled Substance” (MCL 333.7404), carrying with it a maximum term of 1 year in jail and/or a fine of not more than $2,000. This only occurs under very unusual circumstances. It should be noted, however, that many counties in Michigan have a “no deals” policy on cases involving heroin and/or methamphetamine, and it is difficult at best to get a charge reduced in those counties. Unlike a straight “possession” charge, a charge involving the distribution and/or manufacture of Schedule 1 or 2 drugs can not be resolved through a deferred judgment under MCL 762.11 (the “Holmes Youthful Trainee Act”, or “HYTA”) or MCL 333.7411. Thus, for most “no offer” cases, the defendant’s best and only option is to go to trial.
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 convicted of this charge are also sentenced to serve time in the county jail. A few are sentenced to prison.
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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