Michigan law has stiff penalties for the use, possession, delivery or manufacture of controlled substances. In addition, Michigan also penalizes a person who maintains a structure or vehicle that is used by other persons for the consumption or storage of controlled substances, even if that person does not even participate in any transactions. There is no shield from criminal liability just because you were only the host.
An individual is guilty of maintaining a drug house or drug vehicle in Michigan, contrary to MCL 333.7405(1)(d), if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 12.8):
- First, that the individual knowingly kept or maintained a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place.
- Second, that the store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place was ANY OF THE FOLLOWING:
- Frequented by persons for the purpose of illegally using controlled substances, OR;
- Used for illegally keeping controlled substances, OR;
- Used for illegally selling controlled substances.
- Third, that the individual knew that the store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place was frequented or used for such illegal purposes.
The penalties for maintaining a drug house or drug vehicle are as follows:
- In a civil proceeding in the circuit court, a violation of this law is punishable by a civil fine up to $25,000.00.
- In a criminal prosecution, the penalty is a high court misdemeanor punishable by a fine up to $25,000.00 or up to 2 years in prison, or both.
It is not enough for the prosecutor to prove that an individual on one occasion sold narcotics out of his home or vehicle to sustain a conviction. In People v Thompson, 477 Mich 146; 730 NW2d 708 (2007), a tip to the police revealed that the defendant was going to appear in a restaurant parking lot with a white van to sell narcotics. A woman in a red sedan was observed getting out of her vehicle, entering the white van, then exiting after a few minutes to get back into her own vehicle. Law enforcement later detained the red sedan at a traffic stop and found crack cocaine with drug paraphernalia. The woman told a detective that she purchased crack cocaine from the defendant in the white van, of which the currency she used was found in that vehicle. The jury convicted the defendant of controlled substance delivery and maintaining a drug vehicle. The Michigan Court of Appeals upheld the controlled substance delivery offense, but reversed the maintaining a drug vehicle conviction on the basis that the “defendant exercised authority or control over the white van for an appreciable period of time for the purposes of making the van available for selling or keeping drugs”. The prosecuting attorney appealed this decision to the Michigan Supreme Court.
The Michigan Supreme Court agreed with the lower appellate court, noting that “[j]ust as one does not keep and maintain a house of ill fame by engaging in an isolated act of lewdness or prostitution in the house, one does not keep or maintain a drug vehicle by engaging in an isolated act of selling drugs out of the vehicle.” They further found that “[t]he phrase “keep or maintain” implies usage with some degree of continuity that can be deduced by actual observation of repeated acts or circumstantial evidence, such as perhaps a secret compartment or the like, that conduces to the same conclusion.” Therefore, “if the evidence only shows that defendant used a vehicle to keep or deliver drugs on one occasion, and there is no other evidence of continuity, the evidence is insufficient to establish that defendant kept or maintained a drug vehicle in violation of MCL 333.7405(1)(d).”
However, here are instances where the appellate courts have upheld convictions for maintaining a drug house or drug vehicle since the Thompson decision:
- People v Bosca, 310 Mich App 1; 871 NW2d 307 (2015) – The Michigan Court of Appeals upheld a conviction for keeping and maintaining a drug house despite the defendant’s assertion that his only crime was having amounts of marijuana is excess of what was permitted under the Michigan Medical Marihuana Act. “Sufficient evidence was adduced for a rational trier of fact to find that defendant kept or maintained the residence, and that it was used with ‘some degree of continuity’ for ‘keeping or selling’ controlled substances.” “It was undisputed that defendant owned and resided at this location”. “Additionally, there was no dispute that defendant used the premises to grow marijuana” . “Once again, the dispute was over whether defendant manufactured more marijuana than legitimately permitted under his license as a grower”. “Premised on the jury’s factual determination that defendant’s crop exceeded the amount he was authorized to manufacture, sufficient evidence was presented to sustain this conviction.”
- People v Norfleet, 317 Mich App 649; 897 NW2d 195 (2016), cert denied 896 NW2d 4 (2017) – The Michigan Court of Appeals upheld a conviction for keeping and maintaining a drug house and drug vehicle despite the defendant’s assertion that the phrase “keep or maintain” requires controlled substance sue to be both continuous and a substantial purpose for which the house or vehicle was used. Although no heroin was found by the police in the defendant’s home or Jeep, the “evidence of continuous use of his home and Jeep to keep and sell heroin and the evidence that a substantial purpose of his home and Jeep was to keep and sell heroin was the testimony of various witnesses indicating that the Jeep was used to make heroin deliveries and that the home was used to store both the heroin and the proceeds of the heroin’s sale.” Therefore, the elements of the offense were satisfied despite the lack of direct evidence.
Although this crime is labelled as a high court misdemeanor, Michigan law states that any criminal statute that carries a maximum penalty greater than one year of incarceration is treated as a felony. A person with a prior maintaining a drug house or drug vehicle conviction who is accused of another felony charge can be prosecuted as a second habitual offender. Additionally, the Michigan Supreme Court recently held in People v Washington, __ Mich __; __ NW2d __ (2018) that this criminal offense “may serve as the predicate felony for a felony-firearm conviction” under MCL 750.227b(1).
While many controlled substance offenses related to possession or use may be eligible for deferral if a guilty or nolo contendre plea is entered under MCL 333.7411 (also known as the “7411” deferral), maintaining a drug house or drug vehicle is NOT a qualified offense enumerated in the statute. However, a conviction may still be deferred under the Holmes Youthful Trainee Act, if eligible, or possibly expunged under Michigan law if the defendant remains crime-free for five years at the end of the sentence.
If you are facing a charge of maintaining a drug house, drug vehicle, or any other controlled substance offense, do not hesitate to contact the experienced criminal defense attorneys at Kershaw, Vititoe & Jedinak PLC.