What Are The Penalties For Possessing, Manufacturing, Distributing and Using Hallucinogenic Drugs In Michigan?

Hallucinogenic drugs are controlled substances consumed recreationally for their mind-altering effects. They can create distorted perceptions of reality and illusions of strange sounds and light. They can cause violent behavior and severely adverse health effects. As a result, they are outlawed for both possessing and using in the State of Michigan.

Hallucinogenic drugs are classified as a Schedule 1 drug in Michigan. MCL 333.7212(1)(c). This means, according to the Public Health Code, that “[t]he 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.

Common hallucinogenic drugs include, but are not limited to, the following:

• Lysergic acid diethylamide (LSD) – The hallucinations and illusions produced by this drug lend the name to an “acid trip”. The effects of the drug can last 12 hours and some side effects include pupil dilation, increase body temperature and heart rate, tremors, perspiration and numbness.

• Phencyclidine (PCP) – also known as “angel dust”. It is usually smoked but can be consumed orally, injected and even snorted. However, side effects can include seizures, coma and a heightened risk of suicide.

• Peyote – a small, spineless cactus that is consumed for psychoactive effects. This substance is known to be used in certain Native American ceremonies in the American Southwest. However, abuse of peyote can cause increased blood pressure and heart rate and amplification of existing mental health problems.

• Psilocybin – also known as “magic mushrooms”. When ingested, it may take a few hours to take effect but is reported to cause strange light effects, the appearance of rippling services, increased awareness of sounds and trails behind moving objects. Side effects include muscle relaxation, depression and dialated pupils.

Hallucinogenic drugs are not available for prescription by any doctor. The creation, sale, possession and consumption is completely illegal with no exception in the State of Michigan.

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

An individual is guilty of illegally manufacturing hallucinogenic drugs 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 hallucinogenic drug (LSD, PCP, peyote or mushrooms). “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 hallucinogenic drugs.

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

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

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

An individual is guilty of illegally possessing hallucinogenic drugs 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 hallucinogenic drugs. 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 hallucinogenic drugs was possessed in a quantity at the amount that the prosecutor is charging him or her with (the weight of the hallucinogenic drug 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 hallucinogenic drugs are as follows:

• If the amount of hallucinogenic drugs 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 hallucinogenic drugs 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 hallucinogenic drugs 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 hallucinogenic drugs 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 HALLUCINOGENIC DRUGS (MCL 333.7403(2)(a))

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

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

The penalties for possession of hallucinogenic drugs are as follows:

• If the amount of hallucinogenic drugs 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 hallucinogenic drugs 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 hallucinogenic drugs 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 hallucinogenic drugs 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 hallucinogenic drugs 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 HALLUCINOGENIC DRUGS (MCL 333.7404(2)(a))

An individual is guilty of illegally using hallucinogenic drugs 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 a hallucinogenic drug.

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

The penalty for using hallucinogenic drugs 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 hallucinogenic drugs 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 a hallucinogenic drug if the substance was not actually a hallucinogenic drug. A drug dealer trying to sell “magic mushrooms” may actually be selling bell mushrooms used for food preparation. A laboratory test of the actual substance may conclude it is not a hallucinogenic drug 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 hallucinogenic 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 “magic mushrooms” is discovered under the passenger seat, then all five occupants can be charged with being in constructive possession of the hallucinogenic 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.