2.4Controlled Substance or Controlled Substance Analogue – Use
“A person shall not use a controlled substance or controlled substance analogue unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by [Article 7 of the PHC].” MCL 333.7404(1).
“The following individuals are not in violation of [MCL 333.7404]:
(a) An individual who seeks medical assistance for himself or herself or who requires medical assistance and is presented for assistance by another individual if he or she is incapacitated because of a drug overdose or other perceived medical emergency arising from the use of a controlled substance or a controlled substance analogue that he or she possesses or possessed in an amount sufficient only for personal use and the evidence of his or her violation of [MCL 333.7404] is obtained as a result of the individual’s seeking or being presented for medical assistance.
(b) An individual who in good faith attempts to procure medical assistance for another individual or who accompanies another individual who requires medical assistance for a drug overdose or other perceived medical emergency arising from the use of a controlled substance or a controlled substance analogue that he or she possesses or possessed in an amount sufficient only for personal use and the evidence of his or her violation of [MCL 333.7404] is obtained as a result of the individual’s attempting to procure medical assistance for another individual or as a result of the individual’s accompanying another individual who requires medical assistance to a health facility or agency.” MCL 333.7404(3).1
“The exemption from prosecution under [MCL 333.7404(3)] does not prevent the investigation, arrest, charging, or prosecution of an individual for any other violation of the laws of this state or be grounds for suppression of evidence in the prosecution of any other criminal charges.” MCL 333.7404(5).
For information about the treatment of substance use disorders, see Section 10.2.
B.Relevant Jury Instruction2
•M Crim JI 12.6 addresses the unlawful use of a controlled substance.
Violations of MCL 333.7404(1) are categorized by the type of substance involved in the prohibited conduct.
1.Offenses Involving Schedule 1 or 2 Narcotic Drugs or Cocaine-Related Substances, Ecstasy/MDMA, or Methamphetamine
Violation of MCL 333.7404(1) by the use of schedule 1 or 2 narcotic drugs, any substance described in MCL 333.7214(a)(iv) (cocaine-related substances), MCL 333.7212(1)(h) (ecstasy/MDMA), or MCL 333.7214(c)(ii) (methamphetamine) is a misdemeanor punishable by:
•imprisonment for not more than one year; or
•a fine of not more than $2,000; or
•both. MCL 333.7404(2)(a).
2.Offenses Involving Controlled Substance Analogues or Any Other Schedule 1, 2, 3, or 4 Substances Not Otherwise Addressed
Violation of MCL 333.7404(1) by the use of controlled substance analogues or any other schedule 1, 2, 3, or 4 substances not otherwise penalized under MCL 333.7404 is a misdemeanor punishable by:
•imprisonment for not more than one year; or
•a fine of not more than $1,000; or
•both. MCL 333.7404(2)(b).
3.Offenses Involving Other Specified Substances and Schedule 5 Substances
Violation of MCL 333.7404(1) by the use of lysergic acid diethylamide, peyote, mescaline, dimethyltryptamine, psilocyn, psilocybin, or a controlled substance classified in schedule 5 is a misdemeanor punishable by:
•imprisonment for not more than six months; or
•a fine of not more than $500; or
•both. MCL 333.7404(2)(c).
4.Offenses Involving Marijuana, Catha Edulis, Salvia Divinorum, or a Substance Described in MCL 333.7212(1)(d) or MCL 333.7212(1)(i)3
Violation of MCL 333.7404(1) by use of marijuana, catha edulis, salvia divinorum, or a substance described in MCL 333.7212(1)(d) or MCL 333.7212(1)(i) is a misdemeanor punishable by:
•imprisonment for not more than 90 days; or
•a fine of not more than $100; or
•both. MCL 333.7404(2)(d).
Where a defendant argues that he or she was authorized to use the controlled substance or controlled substance analogue, he or she bears the burden of proving that his or her use was authorized.4 MCL 333.7531(1). In the absence of proof, there is a rebuttable presumption that the defendant was not authorized to use the controlled substance or controlled substance analogue. MCL 333.7531(2). See M Crim JI 12.4a.
2.Intravenous Use of Controlled Substances: Distribution of Information and Examination or Testing
MCL 333.5129 requires certain information to be distributed when an individual is arrested and charged with violation of certain crimes, including violation of MCL 333.7404 by intravenous use.
MCL 333.5129(2) provides that “[e]xcept as otherwise provided in [MCL 333.5129], if an individual is arrested and charged with violating . . . [MCL 333.7404] by intravenously using a controlled substance, or a local ordinance prohibiting . . . the intravenous use of a controlled substance, the judge or magistrate responsible for setting the individual’s conditions of release pending trial shall distribute to the individual the information on . . . HIV infection required to be distributed by county clerks under [MCL 333.5119(1)] and shall recommend that the individual obtain additional information and counseling at a local health department testing and counseling center regarding . . . hepatitis B infection, hepatitis C infection, HIV infection, and acquired immunodeficiency syndrome. Counseling under this subsection is voluntary on the part of the individual.”
MCL 333.5129(4) provides that “[e]xcept as otherwise provided in [MCL 333.5129], upon conviction of a defendant or the issuance . . . of an order adjudicating a child to be within the provisions of [MCL 712A.2(a)(1) (juvenile delinquency)5] . . . for violating . . . [MCL 333.7404] by intravenously using a controlled substance, or a local ordinance prohibiting . . . the intravenous use of a controlled substance, the court that has jurisdiction of the criminal prosecution or juvenile hearing shall order the defendant or child to be examined or tested for . . . hepatitis B infection, and hepatitis C infection and for the presence of HIV or an antibody to HIV.” The tests must meet statutory requirements, and the court must also order counseling and provide information regarding treatment, transmission, and protective measures. Id.
For other convictions listed in MCL 333.5129(2) and MCL 333.5129(4) (none of which are relevant to this benchbook), the court must also inform, recommend counseling, and examine or test an individual for a sexually transmitted infection. However, MCL 333.5129(9) provides that the requirements regarding information about, counseling about, and examining or testing for a sexually transmitted infection do not apply to individuals charged with or convicted of violating MCL 333.7404 by intravenously using a controlled substance or a local ordinance prohibiting the intravenous use of a controlled substance.
3.The Methamphetamine Abuse Reporting Act
Under the Methamphetamine Abuse Reporting Act, MCL 28.121 et seq., the department must notify NADDI of convictions upon notification by a court6 that an individual has been convicted of a methamphetamine-related offense. If MCL 333.7404 is violated by the use of methamphetamine, MCL 333.7404 is a methamphetamine-related offense. MCL 28.122(b)(i). For more information on the Methamphetamine Abuse Reporting Act, see Section 1.6.
1 “A health facility or agency shall develop a process for notification of the parent or parents, guardian, or custodian of a minor under the age of 18 who is not emancipated under . . . MCL 722.1 to [MCL] 722.6, and who voluntarily presents himself or herself, or is presented by another individual if he or she is incapacitated, to a health facility or agency for emergency medical treatment as provided in [MCL 333.7404(3)]. A health facility or agency shall not provide notification to a parent or parents, guardian, or custodian under this subsection for nonemergency treatment without obtaining the minor’s consent.” MCL 333.7404(4).
2 Note that the jury instruction applies to controlled substances and does not specifically reference controlled substance analogues.
3 The Michigan Medical Marihuana Act, MCL 333.26421 et seq., is discussed in Chapter 7.
4 For a more detailed analysis of authorization as a defense, see Chapter 7.
5 See the Michigan Judicial Institute’s Juvenile Justice Benchbook for information on proceedings involving a juvenile.
6 See e.g., MCL 333.7340c(3), as added by 2014 PA 217, effective January 1, 2015, which requires the court to report to the state police when a person is convicted under MCL 333.7340c (soliciting another person to purchase/obtain ephedrine or pseudoephedrine knowing that it is to be used in the illegal manufacture of methamphetamine).