Section 333.7401

Michigan Public Health Code Section 7401 (MCL 333.7401): Manufacture or Delivery of a Controlled Substance and Possession of a Controlled Substance with Intent to Deliver

1. Definition and Elements of the Crime

MCL 333.7401 criminalizes, among other things, (1) manufacture of a controlled substance, (2) delivery of a controlled substance, and (3) possession of a controlled substance with intent to deliver. Penalties are generally graded by two factors—the drug and amount. Delivering one gram of marijuana, for example, will be treated much less harshly than delivering a kilogram of cocaine.

A. Manufacture of a Controlled Substance

Manufacture of a controlled substance generally has four elements, all of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant manufactured a controlled substance. (“Manufacture” means producing or processing a controlled substance.)
2. Second, the substance manufactured was __________.
3. Third, the defendant knew he or she was manufacturing __________.
4. Fourth, the substance weighed __________.

The blank spaces denote the controlled substance and the amount. These will be tailored to the specifics of each case. As explored below, these factors will also determine the penalty for the offense.

B. Delivery of a Controlled Substance

Delivery of a controlled substance generally has three elements, all of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant delivered __________. (“Delivery” means that the defendant transferred or attempted to transfer the substance to another person, knowing it was a controlled substance and intending to transfer it to that person.)
2. Second, the defendant knew that he or she delivered a controlled substance.
3. Third, the controlled substance that the defendant deliver weighed __________.

Again, the blank spaces denote the controlled substance and the amount, which determines the penalty for the offense.

C. Possession of a Controlled Substance with Intent to Deliver

Possession of a controlled substance with intent to deliver generally has four elements, all of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant possessed __________.
2. Second, the defendant knew that he or she possessed a controlled substance.
3. Third, the defendant intended to deliver the controlled substance to someone else.
4. Fourth, the controlled substance that the defendant intended to deliver weighed __________.

Again, the blank spaces denote the controlled substance and the amount, which determines the penalty for the offense.

2. Examples

A woman is driving along an interstate. A police officer pulls her over for speeding. The woman appears nervous as she interacts with the officer. The officer asks to search the trunk. The woman consents. The officer finds a kilogram of cocaine in a duffel bag in the trunk.

Acting on a tip from a confidential informant, police go to a house where a man is allegedly making methamphetamine (“meth”). Police knock on the door. Receiving no answer, they break down the door and find the man making meth in his bedroom.

3. Related Offenses

Other similar or related offenses include:

1. Possession of a controlled substance, MCL 333.7403
2. Use of a controlled substance, MCL 333.7404

4. Defenses to Manufacture or Delivery of a Controlled Substance and Possession of a Controlled Substance with Intent to Deliver

Common defenses in drug cases include (1) lack of intent or knowledge, (2) personal use, (3) lack of possession, and (4) improper search.

Take the woman with the kilo of cocaine in her trunk. Suppose she says that she was paid to deliver the duffel bag from point A to point B but she didn’t know what was in the bag. In other words, she didn’t have the requisite knowledge that she was delivering a controlled substance. This is often called a “blind mule” defense (“mule” as in “drug mule”). Lack-of-knowledge can be a complete defense to a delivery or possession-with-intent-to-deliver charge. But there’s an important proviso—knowledge can be imputed if the defendant reasonably should have known that she was carrying drugs. This is often called “willful blindness” or “willful ignorance.” For example, if the woman retrieved the duffel bag from known drug dealers at a warehouse full of cocaine, “I had no idea there were drugs in the bag” likely won’t be believable.

Now consider the man found cooking meth. The police caught him red-handed, right? Not so fast. Under the Fourth Amendment to the United States Constitution, police cannot engage in “unreasonable searches and seizures.” This means that, ordinarily, police cannot barge into your house without a warrant issued by a judge. The result is that any evidence gleaned from an improper search will be inadmissible in court. In many cases, the wrongfully obtained evidence will be the only thing tying the defendant to the crime, meaning that charges cannot be brought. Here, then, the police were not permitted to simply break down the man’s door without a warrant, and all the evidence they found in the man’s house will be inadmissible. So even though the man is factually guilty of manufacturing meth, without the evidence from the house, any charges against him are likely unsustainable. Search and seizure issues frequently come up in drug cases.

5. Penalties

Again, penalties under MCL 333.7401 generally depend on (1) the controlled substance and (2) the amount. This is true regardless of whether you are convicted of manufacture, delivery, or possession with intent to deliver. In Michigan, controlled substances are divided by “schedule” depending on their medical use and their potential for abuse or dependency, with schedule 1 drugs being the most “serious.”

For certain schedule 1 and 2 narcotics (including heroin and cocaine), the penalties are as follows:

• If 1,000 grams or more were involved, it is a felony punishable by up to life in prison and a fine of up to $1,000,000
• If 450 to 1,000 grams were involved, it is a felony punishable by up to 30 years in prison and a fine of up to $500,000
• If 50 to 450 grams were involved, it is a felony punishable by up to 20 years in prison and a fine of up to $250,000
• If less than 50 grams were involved, it is a felony punishable by up to 20 years in prison and a fine of up to $25,000

If the offense involved any amount of ecstasy or methamphetamine, it is punishable by up to 20 years in prison and a fine of up to $25,000.

If the offense involved any amount of any other schedule 1, 2, or 3 controlled substance—except marijuana—it is a felony punishable by up to 7 years in prison and a fine of up to $10,000.

If the offense involved any amount of a schedule 4 controlled substance, it is a felony punishable by up to 4 years in prison and a fine of up to $2,000.

For marijuana, the penalties are as follows:

1. If 45 or more kilograms or if 200 or more plants were involved, it is a felony punishable by up to 15 years in prison and a fine of up to $10,000,000.
2. If 5 to 45 kilograms or 20 to 200 plants were involved, it is a felony punishable by up to 7 years in prison and a fine of up to $500,000.
3. If less than 5 kilograms or fewer than 20 plants were involved, it is a felony punishable by up to 4 years in prison and a fine of up to $20,000.

If the offense involved any amount of a schedule 5 controlled substance, it is a felony punishable by up to 2 years in prison and a fine of up to $2,000.

6. Criminal Defense for Manufacture or Delivery of a Controlled Substance and Possession of a Controlled Substance with Intent to Deliver

Although Michigan’s drug laws are being relaxed—as evidenced by the recent legalization of recreational marijuana use—the crimes established by MCL 333.7401 are still serious felonies. Charges under MCL 333.7401 are often pursued aggressively by crusading prosecutors trying to rid their jurisdictions of illegal drugs. If you’re under investigation for or have been charged with a crime under MCL 333.7401, you need to hire a criminal defense attorney as soon as possible. Grabel & Associates has been in business for more than 20 years and has handled hundreds of drug cases. Our highly respected attorneys know what it takes to obtain the best result in your case.

For more information about the drug crimes found in MCL 333.7401 and to talk about your case, contact Grabel & Associates at (800) 342-7896.