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What Are The Penalties For Manufacturing, Distributing, Using Or Possessing "Date Rape" Drugs In Michigan?

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The term "date rape drug" is a term applied to any substance designed to incapacitate another person for the purpose of performing non-consensual acts. A typical situation involves someone placing the drug unsuspectedly in an unattended drink at the bar while the target isn't looking. The drug used is often odorless, tasteless and colorless to avoid detection. You can be sure that, in the State of Michigan, the illegal use of these drugs will be met with harsh criminal sanctions. In addition, any sexual conduct or sexual penetration arising from the drug use can also lead to prosecution for rape or other criminal sexual conduct offenses.

Controlled substances frequently used as "date rape drugs" include, but are not limited to, the following:

  • Gamma-Hudroxybutyric acid (GHB) - This colorless and odorless drug, when placed in a drink, will make the victim immediately feel groggy, sleepy and impair the ability to recall what happened during the intoxication. GHB is a Schedule 1 drug in Michigan. MCL 333.7212(1)(g). This means, according to the Public Health Code, that "the substance has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision." MCL 333.7211.
  • Gamma-Butyrolactone (GBL) - Although it has legitimate functions in the chemical industry, this drug can be rapidly converted into GHB and has similar effects. This drug can cause black-outs, sedation, slowed heartbeat, hypothermia or even coma if overdosed. If used as a GHB analogue, it is considered as and treated like a Schedule 1 drug in Michigan.
  • Flunitrazepam (Rohypnol or "Roofie") - In sufficient doses, it can cause memory loss as to recalling what happened during the period of intoxication. This is a Schedule 4 drug in the State of Michigan that is often prescribed by doctors to treat insomnia in patients. MCL 333.7218(1)(a).

GHB is completely illegal to create, sell, use or possess. GBL and flunitrazepam have legitimate purposes, but using any either substance to facilitate a sexual assault can lead to steep fines and a length incarceration.

DELIVERY OF GHB AND GBL TO COMMIT OR ATTEMPT TO COMMIT SEXUAL ASSSAULT (MCL 333.7401a(1)).

An individual is guilty of delivery of GHB or GBL to commit or attempt to commit sexual assault if the prosecutor can prove ALL of the following beyond a reasonable doubt.

  • First, that the individual delivered GHB, GBL or material, compound, mixture, or preparation containing GBL.
  • Second, that the individual delivered GHB or GBL to another individual without their consent.
  • Third, that the individual delivered GHB or GBL with the intent to commit or attempt to commit criminal sexual conduct - first degree (MCL 750.520b), criminal sexual conduct - second degree (MCL 750.520c), criminal sexual conduct - third degree (MCL 750.520d), criminal sexual conduct - fourth degree (MCL 750.520e) or assault with intent to commit criminal sexual conduct (MCL 750.520g).

The penalty for delivery of GHB or GBL to commit or attempt to commit sexual assault is a felony conviction punishable by up to 20 years in prison. MCL 333.7401a(1). A conviction or sentence under this law does not prohibit a conviction or sentence for any other crime arising out of the same transaction. MCL 333.7401a(2). A person can be convicted of this offense even if not actually convicted of the underlying criminal sexual conduct offense. MCL 333.7401a(3). In addition, the offender's 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).

UNLAWFUL MANUFACTURING, DELIVERING OR POSSESSING WITH INTENT TO DELIVER GHB, GBL OR FLUNITRAZEPAM

An individual is guilty of illegally manufacturing GHB, GBL or flunitrazepam 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 GHB, GBL or flunitrazepam. "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 GHB, GBL or flunitrazepam.
  • Fourth, that the individual was not legally authorized to manufacture GHB, GBL or flunitrazepam. However, a person may manufacture GBL or any material, compound, mixture, or preparation containing GBL for use in a commercial application and not for human consumption and compliance with this law is an affirmative defense to manufacturing GBL. MCL 333.7401b(2).

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

  • First, that the individual delivered GHB, GBL or flunitrazepam. 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:
  1. The individual must have intended to deliver GHB, GBL or flunitrazepam to someone else.
  2. The individual must have taken some action toward delivering the GHB, GBL or flunitrazepam, 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 individual knew that he or she delivered GHB, GBL or flunitrazepam.
  • Third, that the individual was not legally authorized to deliver GHB, GBL or flunitrazepam. However, a person may deliver GBL or any material, compound, mixture, or preparation containing GBL for use in a commercial application and not for human consumption and compliance with this law is an affirmative defense to delivering GBL. MCL 333.7401b(2).

An individual is guilty of illegally possessing GHB, GBL or flunitrazepam 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 GHB, GBL or flunitrazepam. 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 GHB, GBL or flunitrazepam.
  • Third, that the defendant intended to deliver GHB, GBL or flunitrazepam to someone else.
  • Fourth, that the defendant was not legally authorized to possess GHB, GBL or flunitrazepam with intent to deliver. However, a person may possess with intent to deliver GBL or any material, compound, mixture, or preparation containing GBL for use in a commercial application and not for human consumption and compliance with this law is an affirmative defense to possessing GBL with intent to deliver. MCL 333.7401b(2).

The penalty for manufacturing, delivering or possessing with intent to deliver GHB is a felony conviction punishable by up to 7 years in prison or a fine up to $10,000.00, or both. MCL 333.7401(2)(b)(ii). The penalty for manufacturing, delivering or possessing with intent to deliver GBL is a felony conviction punishable by up to 7 years in prison or a fine up to $5,000.00, or both. MCL 333.7401b(3(a). The penalty for manufacturing, delivering or possessing with intent to deliver flunitrazepam is a felony conviction punishable by up to 4 years in prison or a fine up to $2,000.00, or both. MCL 333.7401(2)(c). In addition, the offender's 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).

UNLAWFUL POSSESSION OF GHB, GBL OR FLUNITRAZEPAM

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

  • First, that the individual possessed GHB, GBL or flunitrazepam. 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" GHB, GBL or flunitrazepam if they have already ingested it.
  • Second, that the individual knew that he or she possessed GHB, GBL or flunitrazepam.
  • Third, that the individual did not have a legal authority to possess GBL or flunitrazepam (you can never have legal authority to possess GHB). However, a person may possess GBL or any material, compound, mixture, or preparation containing GBL for use in a commercial application and not for human consumption and compliance with this law is an affirmative defense to possessing GBL. MCL 333.7401b(2). A person may also obtain a legal prescription to flunitrazepam from a doctor.

The penalties for possession of GHB, GBL and flunitrazepam is a felony conviction punishable by up to two years in prison or a fine up to $2,000.00, or both. In addition, the offender's 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).

UNLAWFUL USE OF GHB, GBL AND FLUNITRAZEPAM

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

  • First, that the defendant used GHB, GBL and flunitrazepam .
  • Second, that the substance used was GHB, GBL and flunitrazepam .
  • Third, that at the time he or she used it, the defendant knew the substance was GHB, GBL and flunitrazepam.
  • Fourth, that the individual did not have a legal authority to use GBL or flunitrazepam (you can never have legal authority to use GHB).

The penalty for using GHB, GBL and flunitrazepam 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 offender's 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 GHB, GBL and flunitrazepam 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 GHB, GBL and flunitrazepam if the substance was not actually any of those substances. A laboratory test of the actual substance may conclude it is not a prohibited drug and lead to a dismissal of charges.
  • LACK OF CONSTRUCTIVE POSSESSION - If a hotel room occupied by four individuals is searched by the police and GHB is discovered, then all four individuals could be charged with a crime. A lack of control, possession or ownership over the controlled substances (whether actual or constructive) can be a total defense to these serious charges.
  • LEGAL PRESCRIPTION - A doctor can legally prescribe flunitrazepam for treating legitimate medical conditions, but it must be used as directed. A legal prescription, however, does not authorize a person to create or distribute flunitrazepam without some other legal authorization.

Any controlled substance charge is extremely serious, and a conviction will change your life forever. Furthermore, an allegation that a controlled substance was used for "date rape" can lead to a lengthy incarceration in state prison. 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.

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