3.13Sale of Drug Paraphernalia
“Subject to [MCL 333.7453(2)1], a person shall not sell or offer for sale an object specifically designed for inhaling nitrous oxide for recreational purposes or drug paraphernalia, knowing that the object specifically designed for inhaling nitrous oxide for recreational purposes will be used to inhale nitrous oxide for recreational purposes or that the drug paraphernalia will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.” MCL 333.7453(1).
a.Pre-Arrest Notice
“Before a person is arrested for a violation of [MCL 333.7453(1)], the attorney general or a prosecuting attorney shall notify the person in writing, not less than 2 business days before the person is to be arrested, that the person is in possession of specific, defined material that has been determined by the attorney general or prosecuting attorney to be an object specifically designed for inhaling nitrous oxide for recreational purposes or drug paraphernalia. The notice also must request that the person refrain from selling or offering for sale the material and must state that if the person complies with the notice, no arrest will be made for a violation of [MCL 333.7453(1)].” MCL 333.7453(2).
Compliance with the notice from the prosecutor or attorney general is a complete defense in a prosecution under [MCL 333.7453] as long as compliance continues. MCL 333.7453(3).
A person who has received notice under MCL 333.7453(2) may commence a declaratory action against the attorney general or prosecuting attorney who sent the notice to obtain an adjudication of the legality of the intended sale or offer to sell. MCL 333.7459(1)-(2).
A declaratory judgment issued pursuant to an action brought under MCL 333.7459 and stating that the sale or the offer for sale of specified material does not violate MCL 333.7453(1) is a complete defense against prosecution under MCL 333.7453(1). MCL 333.7461.
b.Items Not Constituting Drug Paraphernalia
“[MCL 333.7451 to MCL 333.7455] do not apply to any of the following:
(a) An object sold or offered for sale to a person licensed under article 15 or under the occupational code, 1980 PA 299, MCL 339.101 to 339.2721, or any intern, trainee, apprentice, or assistant in a profession licensed under article 15 or under the occupational code, 1980 PA 299, MCL 339.101 to 339.2721, for use in that profession.
(b) An object sold or offered for sale to any hospital, sanitarium, clinical laboratory, or other health care institution including a penal, correctional, or juvenile detention facility for use in that institution.
(c) An object sold or offered for sale to a dealer in medical, dental, surgical, or pharmaceutical supplies.
(d) A blender, bowl, container, spoon, or mixing device not specifically designed for a use described in [MCL 333.7451].
(e) A hypodermic syringe or needle sold or offered for sale for the purpose of injecting or otherwise treating livestock or other animals.
(f) An object sold, offered for sale, or given away by a state or local governmental agency or by a person specifically authorized by a state or local governmental agency to prevent the transmission of infectious agents.” MCL 333.7457.
Except as provided in MCL 333.7453(2), violation of MCL 333.7453 is a misdemeanor punishable by:
•imprisonment for not more than 90 days; or
•a fine of not more than $5,000; or
•both. MCL 333.7455(1).
Violation of MCL 333.7453 by a person 18 years of age or older who sells or offers to sell an object specifically designed for inhaling nitrous oxide for recreational purposes or drug paraphernalia to a person less than 18 years of age is a misdemeanor punishable by:
•imprisonment for not more than one year; or
•a fine of not more than $7,500; or
•both. MCL 333.7455(2).
1 MCL 333.7453(2) requires notice be given prior to any arrest under MCL 333.7453.