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What Is Michigan’s Second Or Subsequent Drug Offender Penalty?

by | Dec 3, 2019 | Controlled Substance Offenses |


Michigan has very tough penalties for controlled substance offenses and anyone who is convicted can expect to face steep fines, driver’s license sanctions and even a length prison sentence. However, the Michigan Legislature has provided for even harsher penalties for anyone convicted of a drug offense that has a prior controlled substance violation on his or her record. Did you know that a second or subsequent drug conviction can cause your maximum possible incarceration period to DOUBLE and, in some cases, cause the maximum possible fine imposed to TRIPLE?

The second or subsequent drug penalty enhancements are as follows:

  • An individual convicted of a second or subsequent offense under Michigan’s Public Health Code (MCL 333.7401 through MCL 333.7461) may be imprisoned for a term not more than TWICE the term otherwise authorized or fined an amount not more than TWICE that otherwise authorized, or both. MCL 333.7413(1). These offenses include, but are not limited to, the possession, manufacture, distribution or use of Schedule 1, 2, 3, 4 or 5 drugs contrary to law, possession of drug paraphernalia, prescription fraud, or maintaining a drug house or drug vehicle.
  • “An offense is considered a second or subsequent offense, if, before conviction of the offense, the offender has at any time been convicted under this article or under any statute of the United States or of any state relating to a narcotic drug, marihuana, depressant, stimulant, or hallucinogenic drug.” MCL 333.7413(4).
  • An individual convicted of a second or subsequent offense under MCL 333.7410(2) (delivery of Schedule 1 or 2 controlled substance within 1,000 feet of school or library) or MCL 333.7410(3) (possess with intent to deliver Schedule 1 or 2 controlled substance within 1,000 feet of school or library) must be punished by a term of imprisonment of not less than 5 years nor more than TWICE that authorized under the law and, in addition, may be punished by a fine of not more than THREE times that authorized under the law; and is not eligible for probation or suspension of sentence during the term of imprisonment. MCL 333.7413(2). The court may depart from the minimum term of imprisonment authorized for second or subsequent convictions of MCL 333.7410(2) or MCL 333.7410(3) if the court finds on the record that there are substantial and compelling reasons to do so. MCL 333.7413(3).

This enhancement can potentially turn misdemeanors into felonies. In Michigan, possession of marijuana is a misdemeanor punishable by up to one year in jail. If the second or subsequent enhancement is applied to the possession of marijuana charge, the maximum possible penalty becomes TWO years. A felony is defined in stature as an offense punishable by MORE than one year of imprisonment. For the purpose of MCL 333.7413, a possession of marijuana charge that is enhanced as a repeat drug offender is now treated as a felony conviction with all the consequences that come with it. People v Nichols, unpublished per curiam opinion of the Court of Appeals issued December 22nd, 2016 (Docket No. 329240).

Unlike the general habitual offender sentence enhancement statute which increases penalties for repeat felons, MCL 334.7413 does not require any prior notice to the defendant. Ordinarily, a repeat felon is required to be notified within 21 days of the circuit court arrangement that the prosecutor is seeking a habitual felony enhancement of the possible sentence. However, no such advance notice is required to be given by the prosecutor and an unwary defendant may be surprised at sentencing to discover that his or her statutory penalty is doubled. People v Eason, 435 Mich 228, 231; 458 NW2d 17 (1990).

Michigan has an indeterminate sentencing scheme, meaning that offenders are usually sentenced to a prison term that has a minimum and maximum term of years. For example, someone who is convicted of possession of cocaine (a 4-year/$25,000.00 penalty) might receive a sentence of two to four years in prison from the judge. The two-year minimum sentence is the earliest opportunity that the offender may be released on supervision by the parole board. The four-year maximum is the “tail” that the offender could serve if they were unable to be released on parole. The Michigan Supreme Court held that MCL 333.7413 authorizes the trial court to double BOTH the minimum and maximum sentences in order to double the offender’s “term otherwise authorized.” People v Lowe, 484 Mich 718, 731-732; 773 NW2d 1 (2009).

For the trial court to determine the appropriate minimum sentence, it must calculate the range under Michigan’s sentencing guidelines calculations. For example, when considering the offender’s prior record and certain facts related to the conviction, the sentence guidelines may recommend that the minimum term should be somewhere between 5 months and 23 months. The trial court can select a minimum term from that range (unless there is some kind of legal basis to exceed those guidelines). MCL 333.7413 DOUBLES the minimum guideline range, meaning that the trial court can actually select a minimum term somewhere between 10 months and 46 months if the offender is a second or subsequent drug offender. A single prior drug conviction can both trigger doubling the maximum sentence and increasing the prior record variable score into a higher minimum sentence guideline range, meaning that the trial court should score ALL prior record variables to determine sentence guidelines whether drug-related or not. People v Peltola, 489 Mich 174, 190-191; 803 NW2d 140 (2011).

If you are charged as a second or subsequent drug offender, you need an experienced criminal defense attorney in your corner to protect your rights. Even if the evidence against you is strong, a skilled lawyer might be able to negotiate a resolution with the prosecutor that eliminates the second or subsequent enhancement or even obtain a plea bargain to a lesser charge. Settling for anything less than the best can cost you thousands of dollars and several years in prison.

When you or a loved one need aggressive legal representation, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC today.


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