What is possession of a controlled substance?

It is a felony in Michigan under Michigan law, MCL 333.7403, to possess a schedule 1 or 2 controlled substance which include possession of MDMA, ecstasy, meth, cocaine, heroin, and many prescription narcotics such as hydrocodone, and Xanax.The prosecuting attorney must prove the following elements for you to be found guilty of possessing a controlled substance:

First, that the defendant possessed a schedule 1 or 2 controlled substance. Possession is defined as having actual physical control or the right to control the substance. Possession can be by one person or jointly with more than one person. Merely knowledge of a controlled substance is not enough ton constitute possession under the law.

Second, that the defendant knew they were possession a controlled substance.

Third, the weight of the substance must be proven.

Fourth, that the defendant did not have a valid prescription for the controlled substance.

Fifth, that the defendant was not otherwise authorized to possess this substance.

What is the penalty for possession of controlled substance?

The maximum penalty for possession of a controlled substance depends on the substance

Your Michigan driver license will be suspended for a first offense possession of any controlled substance under MCL 257.31ge, and you will lose financial aid under federal law 20 U.S.C.§ 1091(r)(1)

• • Michigan law, MCL 333.7403(2)(a), controls

  possessions of cocaine

  penalties. The penalties have a drastic range based on the amount of cocaine in a person’s possession.

• less than 25 grams is punishable by imprisonment up to 4 years and/or a $25,000.00 fine, MCL 333.7403.(2)(a)(v).
• 25 to 49 grams is punishable by imprisonment up to 4 years and/or a $25,000.00 fine, MCL 333.7403.(2)(a)(iv)
• 50 to 449 grams is punishable by imprisonment up to 20 years and/or $250,000.00 fine, MCL 333.7403.(2)(a)(iii)
• 450 to 999 grams is punishable by imprisonment up to 30 years and/or a $500,000.00 fine, MCL 333.7403.(2)(a)(ii).
• 1,000 grams or more is punishable by imprisonment up to life and/or a $1,000,000.00 fine, MCL 333.7403.(2)(a)(i).

Possession of ecstasy, MDMA or methamphetamine the maximum penalty under Michigan law MCL 333.7403(2)(b)(i) is a felony punishable by up to 10 years in prison and a fine of up to $15,000.Possession of an analogue drug such as heroin, Valium, Oxycontin, or Vicodin is a felony with a maximum penalty of up to 2 years in prison and a fine of $2,000.00 under MCL 333.7403(2)(b)(ii).

What are the defenses to possession of a controlled substance?

If you were not in actual or constructive possession of the controlled substance than you are not guilty.

If the police entrapped you to possessing the controlled substance then you are not guilty.

If you had a prescription or otherwise had legal permission to possess the controlled substance then you are not guilty.

If the substance cannot be proven to be a scheduled 1 or 2 controlled substance than you are not guilty of this crime.

Prosecution must also prove that police had reason to come in contact with you and to search you. A violation of your rights could mean suppression of the evidence and case dismissed.

If you are facing possession charges contact drug crime lawyer Aaron J. Boria today. It may be possible to obtain a reduction or dismissal in your case even if you believe you are guilty.

Maybe the most serious drug offense in Michigan is MCL 333.7401, manufacture and delivery of a controlled substance.

What is manufacture and delivery of a controlled substance?

To be guilty of manufacturing or delivering a controlled substance the prosecutor must prove the elements contained in Michigan law, MCL 333.7401, beyond a reasonable doubt:

First, that the defendant manufactures a controlled substance.

“Manufacture” is a broad term and as defined under Michigan law MCL 333.7106(3) it includes any preparation of a drug right down to packaging.

Second, the substance being manufactured must be identified.

Third, that the defendant knew they were manufacturing it.

Fourth, the weight of the substance must be known.

Fifth, the defendant was not legally authorized to manufacture the substance.

Sixth, the defendant was not manufacturing the substance for their own use.

What is the penalty for manufacture and delivery of a controlled substance?

A conviction for manufacture and delivery of a controlled substance is a felony in Michigan and could mean years in prison if convicted.

Your Michigan driver license will be suspended for a first offense manufacture and delivery of controlled substance under MCL 257.31ge, and you will lose financial aid under federal law 20 U.S.C.§ 1091(r)(1)

• MCL 333.7401(2)(d)(i)-(iii) controls the penalties for

manufacture and delivery of marijuana

The penalties range from 15 years in prison with a ten million dollar fine for having a 45 kilograms or more, or 200 plants or more, down to 4 years years in prison and a fine of $20,000 for having less than 5 kilograms or fewer than 20 plants.

• MCL 333.7401(2)(a)(i)-(iv) controls the penalties for

manufacture and delivery of cocaine

The penalties range from life in prison with a million dollar fine for having a 1,000 grams or more down to 20 years in prison and a fine of $25,000 for having less than 50 grams.

What are the defenses to manufacturing and delivery of a controlled substance?

The facts in every case are different, so your case is likely to have defenses unique to it that you will have to discuss with Aaron J. Boria. Here are a few defenses that may apply to your manufacturing and delivery of a controlled substance case.

The Medical marijuana act would be a defense.

If the controlled substance wasn’t yours, or you lacked possession, you are not guilty.

If the controlled substance was being made solely for personal use you are not guilty of having the intent to deliver.

If even one element cannot be proven beyond a reasonable doubt you are not guilty.

Our firm has successfully defended numerous people charged with this offense and saved them from losing years of their life behind bars. Aaron J. Boria PLLC has the experience needed to defend against Manufacture and Delivery Charges. Contact our office today for a free consultation.

On December 6, 2018, the Michigan Regulation and Taxation of Marihuana Act went into effect legalizing recreational use of marijuana in the state of Michigan.

What Is Permitted Under Michigan’s Recreational Marijuana Law?

Under MCL 333.27955(1) of the Michigan Regulation and Taxation of Marijuana Act the law states that as long as you are in compliance with the section 5 outlined below you are acting lawfully, are not committing a criminal offense, your property cannot be seized or forfeited, you cannot be lawfully arrested, prosecuted, or penalized in any manner.

Possession of Marijuana in Michigan

A person who is 21 years old or older, may possess, use or consume, purchase, or process up to 2.5 ounces or less of marijuana with the exception that no more than 15 grams of that marijuana can be in the form of a concentrate. MCL 333.27955(a)

Growing and Manufacturing Marijuana in Michigan

A person who is 21 years old or older, on that person’s residence, may posses, store, and process up to 10 ounces of marijuana and any marijuana produced by up to twelve marijuana plants cultivated on the premises, so long as it is for personal use. MCL 333.27955(b)

You may assist a person who is 21 years old or older to lawfully comply with anything described in this section of the law. In other words, you can help another person over the age of 21 obtain or cultivate marijuana. MCL 333.27955(c)

Transferring Marijuana in Michigan

A person who is 21 years old or older, may give away or gift up to 2.5 ounces of marijuana, so long as no more than 15 grams of that marijuana in in the form of a concentrate, to another individual 21 years of age or older. MCL 333.27955(d). You cannot sell marijuana or receive any form of consideration for marijuana under the Michigan Marihuana Act.

Penalties for Violating Section 5 of the Michigan Recreational Marihuana Act
Possession of more marijuana allowed by this section of law but less than double the amount , cultivation of more marijuana allowed by this section but less than double the amount, delivery of more marijuana allowed by this section but less than double the amount is punishable as follows:

• A first offense is punishable by a civil infraction and a fine of up to $500 and forfeiture of the marijuana. MCL 333.27965(2)(a).
• A second offense is punishable by a civil infraction and a fine of up to $1000 and forfeiture of the marijuana. MCL 333.27965(2)(b).
• A third offense is punishable by a criminal misdemeanor and a fine of up to $200 and forfeiture of the marijuana. MCL 333.27965(2)(c).
• Possessing more than double the amount allowed, cultivating more than double the amount allowed, or delivering more than double the amount allowed to a person 21 years old or older is punishable by a misdemeanor subject to imprisonment if the prosecutor can convince the judge that the violation was habitual, willful, for a commercial purpose, or the violation involved violence. MCL 333.27965(4)

What Is Not Allowed Under Michigan’s Recreational Marijuana Law?

Section 4, MCL 333.27954, of the Michigan Regulation and Taxation of Marihuana Act lists what is illegal under Michigan’s recreational marijuana law.

It is illegal to operate any motor vehicle , aircraft, snowmobile, off-road vehicle, or motorboat while under the influence of marijuana. MCL 333.27954(1)(a). Doing so would result in an arrest for operating with the presence of a controlled substance.

It is illegal to transfer marijuana or marijuana accessories in any way to a person under the age of 21. MCL 333.27954(b).

It is illegal to separate plant resin by butane extraction or another method that utilizes a substance that has a flashpoint below 100 degrees Fahrenheit in a public place, motor vehicle, or within the property of any residential structure. MCL 333.27954(1)(d).

It is illegal to consume marijuana in a public place or a place where consume marijuana is prohibited by the owner, occupier, or manager of the property. MCL 333.27954(1)(e).

The cultivation of marijuana must be done in a private place in an enclosed locked area. MCL MCL 333.27954(1)(f) makes it illegal to cultivate marijuana in a place that is visible by the naked eye or outside of an enclosed area with locks or other restricted access.

Under MCL 333.27954(1)(g) it is illegal to consume marijuana while operating any type of motor vehicle or to consume marijuana while in the passenger area of a motor vehicle upon a public way. Think of this as open intoxicant but for marijuana.

It is illegal to possess marijuana on the grounds of a school, this includes preschool up to grade twelve, where children attend classes, in a school bus, or on the grounds of any correctional facility. MCL 333.27954(1)(h).

It is illegal for anyone to possess more than 2.5 ounces of marijuana at a person’s residence unless the excess marijuana is stored in a locked area. MCL 333.27954(1)(i).

Minor in Possession of Marijuana (Possession of Marijuana Under the Age of 21)

It is illegal for a person under the age of 21 to possess marijuana. This prohibition includes transportation, cultivation, or selling of marijuana. MCL 333.27954(1)(c).

A person who is under the age of 21, but 18 or older, and is in possession of no more than 2.5 ounces of marijuana, or cultivating no more than 12 plants, faces a civil infraction, forfeiture of their marijuana and a fine of up to $100 for a first offense, MCL 333.279653(a)(2), and $500 for a second offense. MCL 333.279653(2)(b)(2).

A person who is under the age of 18, and is in possession of no more than 2.5 ounces of marijuana, or cultivating no more than 12 plants, faces a civil infraction, forfeiture of their marijuana and a fine of up to $100 or community service and 4 hours of drug education for a first offense, MCL 333.279653(a)(1), and $500 or community service and 8 hours of drug education for a second offense. MCL 333.279653(b)(1).

Can My Employer Stop Me From Using Marijuana?

Under MCL 333.27954(3) of the Michigan Regulation and Taxation of Marihuana Act, an employer can still discipline or even terminate an employee for being in violation of the workplace drug policy. In other words, an employer can require that you refrain from the use of marijuana if it violates the rules on drug use.

Can My Landlord Stop me From Using Marijuana?

A landlord can stop you from growing, distributing, processing, or selling marijuana or marijuana accessories on the property. MCL 333.27954(4). A landlord can prohibit you from smoking marijuana on the premises but cannot stop you from consuming it by other means such as eating.

It is illegal for a person under the age of 21 to be in possession of marijuana.

This ban makes it illegal for a person under 21 to be in possession, transport, grow, or sell marijuana. MCL 333.27954(1)(c). Depending on how old the minor is will control what the penalty is.

Under 21 but older than 18 in possession of marijuana

It is illegal for a person who is under the age of 21, but 18 or older, to be in possession of marijuana. Being found to have 2.5 ounces or less of marijuana, or no more than 12 plants, faces a civil infraction, loss of their marijuana and a fine of up to $100 for a first offense, MCL 333.27965(3)(a)(2), and $500 for a second offense. MCL 333.27965(3)(2)(b)(2)

Under 18 in possession of marijuana

A person who is under the age of 18, and is in possession of no 2.5 ounces of marijuana or less, or 12 plants or less, faces a civil infraction, loss of their marijuana and a fine of up to $100 or community service and 4 hours of drug education for a first offense, MCL 333.27965(3)(a)(1), and $500 or community service and 8 hours of drug education for a second offense. MCL 333.27965(3)(b)(1).

Can my lawyer appear on my behalf?

Michigan Court Rule MCR 4.101 allows an attorney to appear on behalf of their client for civil infractions.

Can I be put in probation for being a minor in possession of marijuana?

Being a minor in possession of marijuana is a civil infraction and not a crime so a person cannot be put on probation for being a minor in possession of marijuana. People v. Greenlee, 133 Mich App 734 (1984).

However, if the court orders community service or a drug education class and the minor fails to complete the court’s order then that person could be held in contempt of court. Being held in contempt of court could result in jail time.

Habitual offenders

In rare cases, if the court determines that a persons actions to violate the marijuana act were habitual, willful, and for a commercial purpose, or the violation involved violence the can be prosecuted for a criminal misdemeanor.

Michigan law, MCL 333.16222(3), requires that medical professionals report a drug conviction within 30 days of the entry of that conviction.

Failure to report a conviction as required will result in administrative action under sections MCL 333.16221 and MCL 333.16226, which can include anything from no action being taken to a full suspension.

Doctors, Nurses, Pharmacists, Dentists, Dieticians, Chiropractors, Clinical Therapists, and Audiologist all fall under Medical Professionals for the purposes of mandatory reporting for a drug conviction.

Once the person has reported the conviction the Michigan Health Professional Recovery Program will administer a substance abuse evaluation and require follow up treatment as deemed necessary.

Avoiding mandatory reporting for Health Care Professionals in Criminal Cases

It may be possible to use MCL 7411 to avoid a conviction, which would result in the medical professional no longer being required to make a report.

Winning the case would not result in a conviction. There may be other ways to avoid mandatory reporting that would be based on a case-by-case basis.