Section 333.7404

Michigan Public Health Code Section 7404 (MCL 333.7404): Unlawful Use of a Controlled Substance

1. Definition and Elements of the Crime

MCL 333.7404 generally makes it illegal to use a controlled substance. Use of a controlled substance is infrequently charged by itself. Instead, the client is usually first charged with the more serious possession of a controlled substance (in most cases, the person possessed the controlled substance before they used it) and use of a controlled substance is offered as a reduced charge in a plea bargain. Use of a controlled substance is a misdemeanor while possession of a controlled substance is often a felony. So, depending on the case, pleading to use rather than possession can be very beneficial for the client.

Use of a controlled substance has two general elements, both of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant used a controlled substance.
2. Second, at the time the defendant used it, the defendant knew it was a controlled substance.

As you’ll learn below, another element in every case is the type of drug, which dictates the penalty for the crime.

2. Examples

A woman attends a raucous house party. The host hands her a drink laced with lysergic acid diethylamide (LSD). She drinks it. Police later break up the party. They find the woman hallucinating and arrest her. A blood test reveals the LSD in her system.

A police officer sees a man walking down the street. The man is a known drug user, a “frequent flyer” at the local jail. The officer has a hunch that the man is on drugs, although the man shows no outward signs of recent drug use. The officer arrests the man and forces him to submit to a blood test, which reveals that the man has methamphetamine (meth) in his system.

3. Related Offenses

Other similar or related offenses include:

1. Possession with intent to deliver a controlled substance, MCL 333.7401
2. Possession of a controlled substance, MCL 333.7403.

4. Defenses to Use of a Controlled Substance

Common defenses to use of a controlled substance include (1) lack of knowledge and (2) improper search.

Take the woman tripping on LSD. There’s no question that she actually used LSD. But say she had no idea that her drink had been spiked. If that’s the case, her lack of knowledge is a complete defense to use of a controlled substance. Maybe other partygoers likewise complain that they had unwittingly been given drinks with LSD. These other partygoers could provide important corroboration for the woman’s lack-of-knowledge defense.

Now take the man walking down the street. Can a police officer arrest him willy-nilly to draw his blood? No. Under the Fourth Amendment of the United States Constitution, police cannot engage in “unreasonable searches and seizures.” Ordinarily, this means an officer cannot stop and detain a person (let alone draw their blood) without some articulable reason to believe they’ve committed a crime—a nebulous “hunch” is not enough. Here, the man’s past drug use, standing alone, does not provide sufficient cause for the police officer to arrest him, especially where the man showed no signs of being on drugs. So even though the man is factually guilty of use of a controlled substance, he cannot be charged with a crime.

5. Penalties

Again, penalties under MCL 333.7404 generally depend on what controlled substance you used. 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 use of certain schedule 1 and 2 narcotics (including heroin and cocaine) as well as ecstasy and methamphetamine, it is a misdemeanor punishable by up to 1 year in jail and a fine of up to $2,000.

For use of other schedule 1, 2, 3, or 4 controlled substances, it is a misdemeanor punishable by up to 1 year in jail and a fine of up to $1,000.

For use of lysergic acid diethylamide, peyote, mescaline, dimethyltryptamine, psilocyn, psilocybin, or a controlled substance classified in schedule 5, it is a misdemeanor punishable by up to 6 months in jail and a fine of up to $500.

6. Criminal Defense for Use of a Controlled Substance

If you’re facing a use of a controlled substance charge, an attorney can often find a winning defense in your case. Otherwise, an attorney can often work out a deal with the prosecutor that leaves you without a conviction on your record. So if you’re under investigation for or have been charged with use of a controlled substance, call 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 use of a controlled substance and to talk about your case, contact Grabel & Associates at (800) 342-7896.