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

 

Fentanyl is an opioid used for pain management and, in conjunction with other drugs, also used for anesthesia.  It is much more potent than morphine and even stronger when in a mixture with other medications.  Despite its legitimate medical uses, fentanyl is also used as a recreational drug in conjunction with heroin or cocaine to achieve a fast “high”.  It is frequently injected into the system for faster effect, although it can be taken orally or through the nose.  It is a public-health crisis as fentanyl-laced drugs are causing tens of thousands of overdose deaths every year and that number is rising.  Today, it is the most common opioid associated with drug deaths.

Fentanyl is classified as a Schedule 1 drug in Michigan.  MCL 333.7214(b).  This means, according to the Public Health Code, that “[t]he substance has high potential for abuse, has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions, and the abuse of the substance may lead to severe psychic or physical dependence.”  MCL 333.7213.  While fentanyl has very useful purposes in medical care, it is a potent and deadly substance when placed in the wrong hands.

Many police agencies have dedicated significant resources into combatting the fentanyl crisis.  Task forces are cracking down on drug dealers that lace other controlled substances and analogues with this deadly compound.  In an effort to send a message and address the overdose rates, prosecutors and judges are seeking the most aggressive sentences possible for both producers, distributors and consumers of fentanyl.  If you are involved in this dirty business, you will be under the scrutiny of law enforcement.

Due to its legitimate medical uses, fentanyl can be prescribed to patients by a doctor.  However, a prescription DOES NOT permit the patient to produce, sell or distribute the fentanyl without express legal authority.

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

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

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

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

An individual is guilty of illegally possessing fentanyl 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 fentanyl. 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 fentanyl was possessed in a quantity at the amount that the prosecutor is charging him or her with (the weight of the fentanyl correlates with the maximum penalty at law). People v Mass, 464 Mich 615; 628 NW2d 540 (2001).
  • Fourth, that the individual did not have a legal prescription for fentanyl.

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

  • If the amount of fentanyl 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 fentanyl 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 fentanyl 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 fentanyl 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 FENTANYL (MCL 333.7403(2)(a))

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

  • First, that the individual possessed fentanyl. 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” fentanyl 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 fentanyl was possessed in a quantity at the amount that the prosecutor is charging him or her with (the weight of the fentanyl correlates with the maximum penalty at law). People v Mass, 464 Mich 615; 628 NW2d 540 (2001).
  • Fourth, that the individual did not have a legal prescription for fentanyl.

The penalties for possession of fentanyl are as follows:

  • If the amount of fentanyl 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 fentanyl 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 fentanyl 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 fentanyl 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 fentanyl 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 FENTANYL (MCL 333.7404(2)(a))

An individual is guilty of illegally using fentanyl 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 fentanyl.
  • Third, that at the time he or she used it, the defendant knew the substance was fentanyl.
  • Fourth, that the individual did not have a legal prescription for fentanyl.

The penalty for using fentanyl 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 fentanyl 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 fentanyl if the substance was not actually fentanyl. A drug dealer trying to sell fentanyl may actually be distributing an analogue or even a legal over-the-counter medication.  A laboratory test of the actual substance may conclude it is not fentanyl 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 fentanyl 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 drugs laced with fentanyl is discovered under the passenger seat, then all five occupants can be charged with being in constructive possession of fentanyl. 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 fentanyl 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 fentanyl without some other legal authorization.

In addition, a person who delivers fentanyl to another person in violation of the law “that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for LIFE OR ANY TERM OF YEARS.”  MCL 750.317a.  Even if death is unintentional, drug dealers who cause a fatal overdose because they distributed their wares can find themselves spending the rest of their natural lives behind bars!  The law is unforgiving to anyone involved in the opioid crisis.

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.

 

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