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A person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form.

Intent to deliver a controlled substance can be inferred from the quantity of narcotics, the way they are packaged, or the paraphernalia found with the narcotics.

Possession with intent to distribute a controlled substance is considered a felony and can be found under MCL 333.7401.

It is clear from the plain language of the statute that MCLS 750.317a provides an additional punishment for persons who deliver a controlled substance in violation of MCL 333.7401 when that substance is subsequently consumed by any person and it causes that person’s death. It punishes an individual’s role in placing the controlled substance in the stream of commerce, even when that individual is not directly linked to the resultant death.

Police do not need probable cause prior to beginning an investigation of drug trafficking by using an undercover agent or informer to buy drugs.

The amount of a controlled substance is an element of a delivery offense, but knowledge of the amount of a controlled substance is not an element of a delivery charge; thus, the accused may be properly convicted of delivery of 225 grams or more but less than 650 grams of cocaine on an aiding and abetting theory, even if the accused does not know the amount of drugs to be delivered, as long as the jury finds that at least 225 grams of cocaine were delivered. 

Conspiracy is a specific intent crime; thus, a defendant charged with conspiracy to deliver 225 grams or more but less than 650 grams of cocaine is entitled to have the jury instructed that the accused is guilty only if the state has proved beyond a reasonable doubt that the accused conspired to deliver, not just some amount of cocaine, but at least 225 grams of cocaine.

Entrapment is issue for court, not jury, to decide in a criminal prosecution.

BLANK LAW, PC EXAMPLE 
POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE

The state failed to present any evidence to suggest that the accused’s physician acted in bad faith or that he intended to prescribe or dispense certain medications for nonmedical purposes where, despite the fact that undercover agents posing as patients in defendant’s walk-in clinic fabricated their ailments, the record supports the contention that the accused believed the agents’ symptoms were real and that the medications he prescribed were effective; the accused’s possible carelessness, bad judgment, or malpractice did not rise to the level of drug trafficking and distributing in bad faith for a non-medical purpose.

The courts have held that the state proved that the accused knowingly and constructively possessed marijuana with the intent to deliver it, because, the accused was found in a drug house with bundles of cash, the police received notice of a large drug transaction, and there was a large amount of marijuana and drug packaging materials.                                                                    

PENALTY
POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE

The penalty for Possession With Intent to Distribute a Controlled Substance varies based on the amount of controlled substance and the type of Schedule substance

(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) and:

(i) Which is in an amount of 1,000 grams or more of any mixture containing that substance is guilty of a felony punishable by imprisonment for life or any term of years or a fine of not more than $1,000,000.00, or both.

(ii) Which is in an amount of 450 grams or more, but less than 1,000 grams, of any mixture containing that substance is guilty of a felony and punishable by imprisonment for not more than 30 years or a fine of not more than $500,000.00, or both.

(iii) Which is in an amount of 50 grams or more, but less than 450 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $250,000.00, or both.

(iv) Which is in an amount less than 50 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $25,000.00, or both.

(b) Either of the following:

(i) A substance described in section 7212(1)(h) or 7214(c)(ii) is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $25,000.00, or both.

(ii) Any other controlled substance classified in schedule 1, 2, or 3, except marihuana or a substance listed in section 7212(1)(d), is guilty of a felony punishable by imprisonment for not more than 7 years or a fine of not more than $10,000.00, or both.

(c) A substance classified in schedule 4 is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.

(d) Marihuana, a mixture containing marihuana, or a substance listed in section 7212(1)(d) is guilty of a felony punishable as follows:

(i) If the amount is 45 kilograms or more, or 200 plants or more, by imprisonment for not more than 15 years or a fine of not more than $10,000,000.00, or both.

(ii) If the amount is 5 kilograms or more but less than 45 kilograms, or 20 plants or more but fewer than 200 plants, by imprisonment for not more than 7 years or a fine of not more than $500,000.00, or both.

(iii) If the amount is less than 5 kilograms or fewer than 20 plants, by imprisonment for not more than 4 years or a fine of not more than $20,000.00, or both.

(e) A substance classified in schedule 5 is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

(f) A prescription form or a counterfeit prescription form is guilty of a felony punishable by imprisonment for not more than 7 years or a fine of not more than $5,000.00, or both.

(3) A term of imprisonment imposed under subsection (2)(a) may be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony.

(4) If an individual was sentenced to lifetime probation under subsection (2)(a)(iv) as it existed before March 1, 2003 and the individual has served 5 or more years of that probationary period, the probation officer for that individual may recommend to the court that the court discharge the individual from probation. If an individual’s probation officer does not recommend discharge as provided in this subsection, with notice to the prosecutor, the individual may petition the court seeking resentencing under the court rules. The court may discharge an individual from probation as provided in this subsection. An individual may file more than 1 motion seeking resentencing under this subsection.

(5) As used in this section, “plant” means a marihuana plant that has produced cotyledons or a cutting of a marihuana plant that has produced cotyledons

DEFENSE
POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE

  • challenge the validity of the search of the police officer. Law enforcement can say that they had consent to search a vehicle, but that consent cannot be coerced. An arrest based on invalid consent is usually suppressed, which means the result of the search cannot be used as evidence against the defendant.
  • Another way evidence can be excluded is if an officer forgoes consent entirely.
  • For example, if law enforcement searches a house without a search warrant or consent, that evidence should not be allowed at trial. Also, if a car is illegally stopped or searched without probable cause, the evidence must be suppressed

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