2.12Imitation Controlled Substance – Use, Possession with Intent to Use, Manufacture, Distribution, or Possession with Intent to Distribute
“Except as provided in [MCL 333.7341(7)], a person shall not manufacture, distribute, or possess with intent to distribute, an imitation controlled substance.” MCL 333.7341(3).
“A person shall not use, or possess with intent to use, an imitation controlled substance, except under the direction of a person authorized pursuant to [MCL 333.7341(7)].” MCL 333.7341(4).
“A person shall not place an advertisement or solicitation in this state to be distributed by any electronic media in this state, or place an advertisement or solicitation in this state in any newspaper, magazine, handbill, or other publication; or post or distribute an advertisement or solicitation in any public place in this state, knowing or having reason to know that the purpose of the advertisement or solicitation is to promote the distribution of an imitation controlled substance.” MCL 333.7341(6).
MCL 333.7341 “does not apply to any person who is authorized by the administrator or the federal food and drug administration to manufacture, distribute, prescribe, or possess an imitation controlled substance for use as a placebo for legitimate medical, therapeutic, or research purposes.” MCL 333.7341(7).
B.Relevant Jury Instructions1
•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.
Violation of MCL 333.7341(3) is a felony punishable by:
•imprisonment for not more than two years; or
•a fine of not more than $10,000; or
•both. MCL 333.7341(8).
“A person who violates [MCL 333.7341(4)] is subject to a civil fine of not more than $100.00 and costs.” MCL 333.7341(4). However, a second or subsequent violation of MCL 333.7341(4) is a misdemeanor punishable by:
•imprisonment for not more than 90 days; or
•a fine of not more than $100; or
•both. MCL 333.7341(4).
Violation of MCL 333.7341(6) is a misdemeanor punishable by:
•imprisonment for not more than one year; or
•a fine of not more than $5,000; or
•both. MCL 333.7341(6).
“A default in the payment of a civil fine or costs ordered under [MCL 333.7341(4)] or an installment thereof may be collected by any means authorized for the enforcement of a judgment under . . . MCL 600.4001 to [MCL 600.4065 and MCL 600.6001 to MCL 600.6098].” MCL 333.7341(5).
Where a defendant argues that he or she was authorized to manufacture, distribute, possess, or use an imitation controlled substance, he or she bears the burden of proving that his or her conduct was authorized.2 MCL 333.7531(1). In the absence of proof, there is a rebuttable presumption that the defendant was not authorized to manufacture, distribute, possess, or use the imitation controlled substance. MCL 333.7531(2).
1 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 imitation controlled substances.
2 For a more detailed analysis of authorization as a defense, see Chapter 7.