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You may be charged with possession of (a) a controlled substance, (b) a controlled substance analogue, or (c) prescription form unless it is a valid prescription. MCL 333.7403(1).
So, what does “possession” mean and how does a prosecutor prove that you “possessed” a controlled substance or drug? If the drug is found in your pockets, that is considered direct evidence of drug possession. However, what if the drugs are found in a friend’s room that you’re staying in for the week? The drugs aren’t found on your person, but are found, for example, on a window ledge? Did you “possess” those drugs? Case law interpreting the statute states that actual physical possession is not necessary for a conviction. Proof of constructive possession is enough.
How does the prosecutor prove “constructive possession”? It must be shown that you had dominion or control over the drugs. You must have the right to possess them just as the owner of a safe deposit box has legal possession of the contents even though the bank has actual custody.
Controlled Substances Classifications and Penalties
The maximum penalty for the crime of possession of a controlled substance depends on (a) the type of drugs and (b) the amount or quantity of drugs. If you possess a schedule 1 or schedule 2 drug that is a narcotic such as certain opiates or their derivatives, opium and its derivatives, cocaine, hydrocodone, oxycodone, morphine, fentanyl, and many other drugs, and the amount is 1,000 grams or more, the penalty is life imprisonment or any term of years, and a fine of up to $1,000,000, or both. If the amount is 450 grams or more but less than 1,000 grams, the penalty is a maximum of 30 years or a fine of not more than $500,000, or both. The penalty for 25 grams or less is up to 4 years imprisonment, up to $25,000, or both. MCL 333.7403.
If you are found in possession of ecstasy, MDMA, amphetamines and their salts (such as Adderall), the maximum penalty is 10 years in prison or a fine of up to $15,000, or both. MCL 333.7403(2)(b)(i). If you are found in possession of a controlled substance analogue, the maximum penalty is 2 years in prison or a fine of up to $2,000, or both.
Possession of other drugs classified as Schedule 5 drugs, like psilocybin and mescaline, carry a maximum penalty of 1 year in prison or a fine of up to $2,000, or both. This offense is a misdemeanor, not a felony. Even though psilocybin (sometimes referred to as Magic Mushrooms) has been “decriminalized” in the City of Detroit, it is still technically illegal at the State and Federal level.
Michigan law provides exceptions. If you are found in possession of a controlled substance, one of these exceptions could apply to you. If you seek medical help or assistance because of a drug overdose or perceived medical emergency, or you are incapacitated because of a drug overdose and you are found with a controlled substance or analogue, you may fall into the exception. MCL 333.7403(3)(a). The amount of drugs found must be sufficient only for personal use.
Additionally, if you possess an illegal drug and in good faith attempt to get medical assistance for another person or accompany another person who requires medical help for a drug overdose or other perceived medical emergency arising from the use of a controlled substance or analogue, you may fall into the exception. MCL 333.7403(3)(b). The amount possessed must be sufficient only for personal use.
The statute defines “drug overdose” as a condition including extreme physical illness, decreased level of consciousness, respiratory depression, coma, mania, or death, that is the result of consumption or use of a controlled substance or a controlled substance analogue or a substance with which the controlled substance or controlled substance analogue was combined, or that a layperson would reasonably believe to be a drug overdose that requires medical assistance. MCL 333.7403(7)(a). The statute also defines “seeks medical assistance” to mean reporting a drug overdose or other medical emergency to law enforcement, the 9-1-1 system, a poison control center, or a medical provider, or assisting someone in reporting a drug overdose or other medical emergency. MCL 333.7403(7)(b).
The statute states that you can still be prosecuted for other violations of the law even if you fall under the exceptions mentioned above. MCL 333.7403(5).