What Are The Penalties For Possessing, Manufacturing, Distributing And Using Cocaine In Michigan?

Cocaine is a very potent nervous system stimulant that is popular due to its powerful “high” and numbing effect. It is highlighted, and sometimes glorified, in movies such as Scarface, Jackie Brown, Kill The Messenger, Goodfellas and Blow. It can be injected directly into your system or smoked and inhaled as “crack” cocaine. It is also highly addictive, even after a short period of use, and is a major contributor to the substance abuse problem in the United States. Law enforcement agencies and federal agents across the country have focused their efforts on locating and defeating the proliferation of cocaine, whether it is the suppliers or the consumers. The legal penalties, especially in Michigan, are very high and can result in a very lengthy period of incarceration.

Cocaine is classified as a Schedule 2 drug in Michigan. MCL 333.7214(a)(iv). This means, according to the Public Health Code, that “[t]he substance has high potential for abuse, [t]he substance has currently accepted medical use in treatment in the United States or currently accepted medical use with severe restrictions, and [t]he abuse of the substance may lead to severe psychic or physical dependence.” MCL 333.7213. Despite its utility as a numbing agent, cocaine not available for prescription in any shape or form.

MANUFACTURING, DELIVERING OR POSSESSING WITH INTENT TO DELIVER COCAINE (MCL 333.7401(2)(a)).

An individual is guilty of illegally manufacturing cocaine if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 12.1):

• First, that the individual manufactured a controlled substance,

• Second, that the substance manufactured was cocaine. “Manufacture” means “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. It includes the packaging or repackaging of the substance or labeling or relabeling of its container”, except that it does not include “the preparation or compounding of a controlled substance by an individual for his or her own use.” MCL 333.7106(3).

• Third, that the individual knew that he or she was manufacturing cocaine.

• Fourth, that the individual knew that the cocaine manufactured was in a quantity at the amount that the prosecutor is charging him or her with (the weight of the cocaine correlates with the maximum penalty at law). People v Mass, 464 Mich 615; 628 NW2d 540 (2001).

An individual is guilty of illegally delivering cocaine if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 12.2):

• First, that the individual delivered cocaine. DELIVERY DOES NOT REQUIRE AN EXCHANGE FOR MONEY OR OTHER CONSIDERATION. “Delivery” means that the individual transferred or attempted to transfer the substance to another person, knowing that it was a controlled substance and intending to transfer it to that person. An attempt to transfer has two elements:

• • The individual must have intended to deliver the substance to someone else.
  • The individual must have taken some action toward delivering the substance, but failed to complete the delivery. It is not enough to prove that the defendant made preparations for delivering the substance. Things like planning the crime or arranging how it will be committed are just preparations; they do not qualify as an attempt. In order to qualify as an attempt, the action must go beyond mere preparation, to the point where the crime would have been completed if it had not been interrupted by outside circumstances. To qualify as an attempt, the act must clearly and directly be related to the crime the defendant is charged with attempting and not some other goal.

• Second, that the defendant knew that he or she delivered a controlled substance.

• Third, that the individual knew that the cocaine was delivered in a quantity at the amount that the prosecutor is charging him or her with (the weight of the cocaine correlates with the maximum penalty at law). People v Mass, 464 Mich 615; 628 NW2d 540 (2001).

An individual is guilty of illegally possessing cocaine with intent to deliver if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 12.3):

• First, that the defendant possessed cocaine. Possession does not necessarily mean ownership. It can mean that the person had actual physical control or dominion over the substance (e.g. in his or her hand or pocket). People v Germaine, 234 Mich 623, 627; 208 NW 705 (1926). It can also mean that he or she had “constructive possession”, or the right to control the substance even if it was in a different room. People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972).

• Second, that the defendant knew that he or she possessed a controlled substance.

• Third, that the defendant intended to deliver the controlled substance to someone else.

• Fourth, that the individual knew that the cocaine was possessed in a quantity at the amount that the prosecutor is charging him or her with (the weight of the cocaine correlates with the maximum penalty at law). People v Mass, 464 Mich 615; 628 NW2d 540 (2001).

The penalties for manufacturing, delivering or possessing with intent to deliver cocaine are as follows:

• If the amount of cocaine is 1,000 grams or more, the penalty is a felony conviction punishable by imprisonment for life or any term of years or a fine of not more than $1,000,000.00, or both. MCL 333.7401(2)(a)(i).

• If the amount of cocaine is 450 grams or more but less than 1,000 grams, the penalty is a felony conviction punishable by imprisonment up to 30 years or a fine of not more than $500,000.00, or both. MCL 333.7401(2)(a)(ii).

• If the amount of cocaine is 50 grams or more but less than 450 grams, the penalty is a felony conviction punishable by imprisonment up to 20 years or a fine of not more than $250,000.00, or both. MCL 333.7401(2)(a)(iii).

• If the amount of cocaine is less than 50 grams, the penalty is a felony conviction punishable by imprisonment up to 20 years or a fine of not more than $25,000.00, or both. MCL 333.7401(2)(a)(iv).

• Driver’s license will be suspended for six months (but suspended for one year if the individual has any prior controlled substance convictions within seven years of the violation). MCL 333.7408a(1).

POSSESSION OF COCAINE (MCL 333.7403(2)(a))

An individual is guilty of illegally possessing cocaine if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 12.5):

• First, that the individual possessed cocaine. Possession does not necessarily mean ownership. It can mean that the person had actual physical control or dominion over the substance (e.g. in his or her hand or pocket). People v Germaine, 234 Mich 623, 627; 208 NW 705 (1926). It can also mean that he or she had “constructive possession”, or the right to control the substance even if it was in a different room. People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972). However, a person is no longer “possessing” cocaine if they have already ingested it.

• Second, that the defendant knew that he or she possessed a controlled substance.

• Third, that the individual knew that the cocaine was possessed in a quantity at the amount that the prosecutor is charging him or her with (the weight of the cocaine correlates with the maximum penalty at law). People v Mass, 464 Mich 615; 628 NW2d 540 (2001).

The penalties for possession of cocaine are as follows:

• If the amount of cocaine is 1,000 grams or more, the penalty is a felony conviction punishable by imprisonment for life or any term of years or a fine of not more than $1,000,000.00, or both. MCL 333.7403(2)(a)(i).

• If the amount of cocaine is 450 grams or more but less than 1,000 grams, the penalty is a felony conviction punishable by imprisonment up to 30 years or a fine of not more than $500,000.00, or both. MCL 333.7403(2)(a)(ii).

• If the amount of cocaine is 50 grams or more but less than 450 grams, the penalty is a felony conviction punishable by imprisonment up to 20 years or a fine of not more than $250,000.00, or both. MCL 333.7403(2)(a)(iii).

• If the amount of cocaine is 25 grams or more but less than 50 grams, the penalty is a felony conviction punishable by imprisonment up to 4 years or a fine of not more than $25,000.00, or both. MCL 333.7403(2)(a)(iv).

• If the amount of cocaine is less than 25 grams, the penalty is a felony conviction punishable by imprisonment up to 4 years or a fine of not more than $25,000.00, or both. MCL 333.7403(2)(a)(v).

• Driver’s license will be suspended for six months (but suspended for one year if the individual has any prior controlled substance convictions within seven years of the violation). MCL 333.7408a(1).

USE OF COCAINE (MCL 333.7404(2)(a))

An individual is guilty of illegally using cocaine if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 12.6):

• First, that the defendant used a controlled substance.

• Second, that the substance used was cocaine.

• Third, that at the time he or she used it, the defendant knew the substance was cocaine.

The penalty for using cocaine is a misdemeanor conviction punishable by up to 1 year in jail or a fine of not more than $2,000.00, or both. In addition, the driver’s license will be suspended for six months (but suspended for one year if the individual has any prior controlled substance convictions within seven years of the violation). MCL 333.7408a(1).

DEFENSES

Some defenses available at law related to manufacturing, delivering, possessing or using cocaine include, but are not limited to, the following:

• NOT ACTUALLY CONTROLLED SUBSTANCE – It is not enough for conviction that the defendant thought he was making, distributing or possessing cocaine if the substance was not actually cocaine. A drug dealer trying to sell cocaine that actually turns out to be a bag of white sugar is not guilty of a crime. A laboratory test of the actual substance may conclude it is not cocaine and lead to a dismissal of charges.

• UNWITTING POSSESSION – Often times, an individual may not realize that they are in possession of a controlled substance. For example, you may borrow someone’s jacket or drive someone else’s car, and a police search of the jacket or vehicle may reveal the presence of drugs without knowing beforehand. Of course, the police will assume that the contraband belongs to you. A lack of knowledge can be a defense that the jury will believe.

• LACK OF CONSTRUCTIVE POSSESSION – If a vehicle with five occupants is pulled over and a bag of cocaine is discovered under the passenger seat, then all five occupants can be charged with being in constructive possession of the drugs. A lack of control, possession or ownership over the controlled substances (whether actual or constructive) can be a total defense to these serious charges.

Any controlled substance charge is extremely serious, and a conviction will change your life forever. You cannot settle for anything less than the most skilled lawyers in your corner. An attorney may review the evidence and determine that the police illegally seized the drugs contrary to the Fourth Amendment. If a judge grants a motion to suppress the evidence, this may lead to a total dismissal of the charges. Even if the evidence is fairly strong, a criminal defense lawyer may be able to negotiate a resolution that avoids a conviction or license sanctions down the road (e.g. deferral under “7411” or Holmes Youthful Trainee Act). In addition, an attorney may be able to negotiate a sentence that includes a drug treatment program in lieu of immediate jail or prison.

If you are charged with manufacturing, delivering, possessing or using any controlled substance, do not hesitate to contact the experienced criminal defense attorneys at Kershaw, Vititoe & Jedinak PLC today.