2.11Gamma-Butyrolactone (GBL) – Possession, Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver
“(1) A person shall not do any of the following:
(a) Manufacture, deliver, or possess with intent to manufacture or deliver [GBL] or any material, compound, mixture, or preparation containing [GBL].
(b) Knowingly or intentionally possess [GBL] or any material, compound, mixture, or preparation containing [GBL].” MCL 333.7401b(1).1
A person authorized to manufacture, deliver, or possess GBL “for use in a commercial application and not for human consumption” is not subject to the prohibitions in MCL 333.7401b(1)(a). MCL 333.7401b(2). “It is an affirmative defense to a prosecution under [MCL 333.7401b] that the person manufactured, delivered, possessed with intent to manufacture or deliver, or possessed [GBL] or the material, compound, mixture, or preparation containing [GBL] in accordance with this subsection.” MCL 333.7401b(2).
B.Relevant Jury Instructions2
•M Crim JI 12.1 addresses the unlawful manufacture of a controlled substance.
•M Crim JI 12.2 addresses the unlawful delivery of a controlled substance.
•M Crim JI 12.3 addresses the unlawful possession of a controlled substance with the intent to deliver.
•M Crim JI 12.7 defines possession.
A conviction for the unauthorized manufacture, delivery, or possession with the intent to manufacture or deliver Gamma-butyrolactone (GBL) (or any material, compound, mixture, or preparation containing GBL) is a felony punishable by:
•imprisonment for not more than seven years; or
•a fine of not more than $5,000; or
•both. MCL 333.7401b(3)(a).
A conviction for knowingly or intentionally possessing GBL is a felony punishable by:
•imprisonment for not more than two years; or
•a fine of not more than $2,000; or
•both. MCL 333.7401b(3)(b).
“An individual 18 years of age or over who violates [MCL 333.7401b3] by delivering or distributing . . . [GBL] to an individual under 18 years of age who is at least 3 years the distributor’s junior may be punished by the fine authorized by [MCL 333.7401b], or by a term of imprisonment not more than twice that authorized by [MCL 333.7401b], or both.” MCL 333.7410(1).
“An individual 18 years of age or over who violates [MCL 333.7401b] by possessing [GBL] . . . on or within 1,000 feet of school property or a library shall be punished by a term of imprisonment or a fine, or both, of not more than twice that authorized by [MCL 333.7401b].” MCL 333.7410(4).
Gamma-butyrolactone (GBL) turns into gamma-hydroxybutyrate (GHB) when it is ingested. People v Holtschlag, unpublished opinion per curiam of the Court of Appeals, issued March 27, 2003 (Docket No. 226715), p 2 n 44; House Legislative Analysis, HB 5556 and House Legislative Analysis, HB 5557, October 9, 2000. GHB is listed in MCL 333.7212(1)(g) as a schedule 1 controlled substance. The statute discussed in this section, MCL 333.7401b(1)(a), makes it a crime to manufacture, deliver, or possess with intent to manufacture or deliver GBL. The manufacture, delivery, or possession with intent to manufacture or deliver GHB is prohibited under the general statute prohibiting the manufacture, delivery, or possession with intent to deliver a controlled substance, MCL 333.7401(1), discussed in Section 2.7.
1 See discussion of the meaning of the term mixture in Section 2.2(C).
2 Note that M Crim JI 12.1, M Crim JI 12.2, and M Crim JI 12.3 apply to controlled substances and do not specifically reference GBL.
3 This enhanced penalty provision also applies to violations of MCL 333.7401 (offenses involving the manufacture, creation, delivery, or possession with intent to manufacture, create, or deliver a controlled substance). See Section 2.7(D) for more information on those offenses.
4 “An unpublished opinion is not precedentially binding under the rule of stare decisis.” MCR 7.215(C)(1). However, unpublished opinions may be “instructive or persuasive.” People v Jamison, 292 Mich App 440, 445 (2011).