2.3Controlled Substance, Controlled Substance Analogue, or Prescription Form – Possession
“A person shall not knowingly or intentionally possess a controlled substance, a controlled substance analogue, or a prescription form unless the controlled substance, controlled substance analogue, or prescription form 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 333.7403(1).
2.Exemption/Affirmative Defense—Good Samaritan Law
“The following individuals are not in violation of [MCL 333.7403]:
(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 333.7403] 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 333.7403] 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 333.7403(3).1
“The exemption from prosecution under [MCL 333.7403(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 333.7403(5).
Under MCL 333.7403, “subsection (3)(a) applies to the individual who overdosed on a controlled substance, and subsection (3)(b) applies to a separate individual who seeks medical attention for the individual who overdosed.” People v Meeker (On Remand), 340 Mich App 559, 565 (2022).
Burden on defendant. “The burden is on defendant to establish as an affirmative defense that the exemption to a criminal statute provided in the Good Samaritan law [under MCL 333.7403(3)] applies by presenting prima facie evidence of the elements of the defense.” People v Morrison, 328 Mich App 647, 653 (2019). If the defendant establishes a prima facie case, the issue becomes “a subjective question of fact” for the jury; however, if the defendant fails to present a prima facie case, “the issue is a question of law for the court to decide.” Id. at 654.
Amount sufficient only for personal use requirement. To determine whether an amount possessed is an “amount sufficient only for personal use” satisfying the statutory exemption under MCL 333.7403(3), “the court must first look at the plain language of the statute”; “[c]onsidering [dictionary] definitions, an ‘amount sufficient only for personal use’ requires a factual determination of what amount a specific person regularly takes” and “requires a case-by-case application of the language based on each individual defendant’s personal-use habits.” Morrison, 328 Mich App at 652, 654 (remanding for the trial court to determine whether defendant established a prima facie case where the record lacked evidence to determine what amount would be sufficient for personal use because “[t]he prosecution did not put forth any evidence about what ‘personal use’ typically looks like for a Xanax user, and defendant did not put forth any evidence about his drug habits, or his personal Xanax use,” and the trial court dismissed the case on policy grounds favoring “saving lives over the criminal prosecution of illegal drug users” rather than on the basis of the statutory requirements).
For information about the treatment of substance use disorders, see Section 10.2.
Meaning of “incapacitated” in MCL 333.7403(3)(a). “[T]he test for immunity is whether the individual was ‘incapacitated because of a drug overdose,’” and while “the term ‘incapacitated’ is not defined in the statute . . . the clear and unambiguous language does not include the ‘good faith’ perspective of the person seeking help as a determining factor.” Meeker, 340 Mich App at 567-568 (noting that consideration of a person’s good faith is relevant to the analysis under MCL 333.7403(3)(b)). “[T]he plain language of [MCL 333.7403(3)(a)] does not require the individual to be unconscious” in order to be “incapacitated.” Meeker, 340 Mich App at 570. Further, evidence that the defendant was “impaired by an intoxicant” that “rendered [him] unfit for normal functioning” was sufficient to demonstrate that the “defendant was incapacitated within the plain meaning of the term[.]” Id. at 569-570 (the evidence showed that defendant “was conscious and minimally responsive,” “could follow simple commands,” “was unfocused and stared into space,” had a wandering gaze, saw things others did not see, talked to himself, and repeated that he “found it” for no apparent reason).
“[W]hen considering whether or not [a] defendant suffered a drug overdose, the question is whether [their] condition, at the time 911 was called, was such ‘that a layperson would reasonably believe to be a drug overdose that requires medical assistance.’” People v Duha, ___ Mich App ___, ___ (2023), quoting MCL 333.7403(7)(a) (defining “drug overdose”). Accordingly, a person can be incapacitated for purposes of the Good Samaritan law even if they did not actually consume a controlled substance or if medical treatment is not ultimately needed; the relevant question is whether the caller’s conclusion that a person is overdosing is reasonable. Duha, ___ Mich App at ___. The focus of MCL 333.7403(3)(a) “is on defendant’s condition when the medical help was summoned, not on the ultimate outcome or treatment received.” Duha, ___ Mich App at ___. Further, “the statute does not require any particular form of assistance or treatment,” and “also recognizes that the determination whether to summon help is a judgment that will be made based on the perception of laypersons and not an after-the-fact determination based on whether or not medical intervention proved necessary.” Id. at ___. The statute “does not require that the situation ultimately be a medical emergency”; rather, “it requires that the person summoning help reasonably perceived that there was a medical emergency at the time.” Id. at ___. “Put simply, the focus of MCL 333.7403(3)(a) is on the condition of the defendant when the decision to call 911 was made.” Duha, ___ Mich App at ___ (holding defendant’s circumstances fell within the protections of the statute where he was unresponsive and had a history of drug use at the time his mother called 911 and noting the fact that he eventually woke up was irrelevant to the analysis).
B.Relevant Jury Instructions2
•M Crim JI 12.5 addresses the unlawful possession of a controlled substance.
•M Crim JI 12.7 defines possession.
Violations of MCL 333.7403(1) are categorized by the quantity and/or type of substance involved in the prohibited conduct.
1.Offenses Involving Schedule 1 or 2 Narcotic Drugs or Cocaine-Related Substances3
For purposes of the Code of Criminal Procedure, a violation of or a conspiracy to violate MCL 333.7403(2)(a)(i)-(iv) is a felony characterized as a major controlled substance offense.4 MCL 761.2(b). The quantities specified in each provision refer to any mixture containing the prohibited substance. See MCL 333.7403(2)(a)(i)-(iv).5
a.1,000 Grams or More
A conviction for knowing or intentional possession of 1,000 grams or more of any mixture containing a schedule 1 or 2 narcotic drug or any substance described in MCL 333.7214(a)(iv) (cocaine-related substances) is a felony punishable by:
•life imprisonment or imprisonment for any term of years; or
•a fine of not more than $1,000,000; or
•both. MCL 333.7403(2)(a)(i).
b.450 Grams or More But Less Than 1,000 Grams
A conviction for knowing or intentional possession of 450 grams or more but less than 1,000 grams of any mixture containing a schedule 1 or 2 narcotic drug or any substance described in MCL 333.7214(a)(iv) (cocaine-related substances) is a felony punishable by:
•imprisonment for not more than 30 years; or
•a fine of not more than $500,000; or
•both. MCL 333.7403(2)(a)(ii).
c.50 Grams or More But Less Than 450 Grams
A conviction for knowing or intentional possession of 50 grams or more but less than 450 grams of any mixture containing a schedule 1 or 2 narcotic drug or any substance described in MCL 333.7214(a)(iv) (cocaine-related substances) is a felony punishable by:
•imprisonment for not more than 20 years; or
•a fine of not more than $250,000; or
•both. MCL 333.7403(2)(a)(iii).
d.25 Grams or More But Less Than 50 Grams
A conviction for knowing or intentional possession of 25 grams or more but less than 50 grams of any mixture containing a schedule 1 or 2 narcotic drug or any substance described in MCL 333.7214(a)(iv) (cocaine-related substances) is a felony punishable by:
•imprisonment for not more than four years; or
•a fine of not more than $25,000; or
•both. MCL 333.7403(2)(a)(iv).6
e.Less Than 25 Grams
A conviction for knowing or intentional possession of less than 25 grams of any mixture containing a schedule 1 or 2 narcotic drug or any substance described in MCL 333.7214(a)(iv) (cocaine-related substances) is a felony punishable by:
•imprisonment for not more than four years; or
•a fine of not more than $25,000; or
•both. MCL 333.7403(2)(a)(v).
2.Offenses Involving Ecstasy/MDMA or Methamphetamine
A conviction for knowing or intentional possession of any substance described in MCL 333.7212(1)(h) (ecstasy/MDMA) or MCL 333.7214(c)(ii) (methamphetamine) is a felony punishable by:
•imprisonment for not more than 10 years; or
•a fine of not more than $15,000; or
•both. MCL 333.7403(2)(b)(i).
3.Offenses Involving Any Other Schedule 1, 2, 3, or 4 Substance or a Controlled Substance Analogue
A conviction for knowing or intentional possession of any amount of a controlled substance analogue or any schedule 1, 2, 3, or 4 substance for which a penalty is not otherwise prescribed in MCL 333.7403(2)(a), MCL 333.7403(2)(b)(i), MCL 333.7403(2)(c), or MCL 333.7403(2)(d) is a felony punishable by:
•imprisonment for not more than two years; or
•a fine of not more than $2,000; or
•both. MCL 333.7403(2)(b)(ii)
4.Offenses Involving Other Specified Substances and Schedule 5 Substances
A conviction for knowing or intentional possession 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 one year; or
•a fine of not more than $2,000; or
•both. MCL 333.7403(2)(c).
5.Offenses Involving Marijuana or a Substance Listed in MCL 333.7212(1)(d)7
A conviction for knowing or intentional possession of any amount of marijuana or a substance listed in MCL 333.7212(1)(d) is a misdemeanor punishable by:
•imprisonment for not more than one year; or
•a fine of not more than $2,000; or
•both. MCL 333.7403(2)(d).
6.Offenses Involving Prescription Forms
A conviction for knowing or intentional possession of a prescription form is a misdemeanor punishable by:
•imprisonment for not more than one year; or
•a fine of not more than $1,000; or
•both. MCL 333.7403(2)(e).
Where a defendant argues that he or she was authorized to possess the controlled substance, controlled substance analogue, or prescription form, he or she bears the burden of proving that his or her possession was authorized.8 MCL 333.7531(1). See also People v Robar, 321 Mich App 106, 142 (2017); M Crim JI 12.4a. In the absence of proof, there is a rebuttable presumption that the defendant was not authorized to possess the controlled substance, controlled substance analogue, or prescription form. MCL 333.7531(2). For example, a valid prescription for the substances involved would exempt the defendant from prosecution for possession. Robar, 321 Mich App at 133.
“No constitutional right of privacy exists which encompasses the right to possess and use marijuana.” People v Williams (Ricky), 135 Mich App 537, 538 (1984).
3.Sufficiency of the Evidence – Possession of Methamphetamine
There was sufficient evidence for a rational jury to find the defendant guilty of possession of methamphetamine where no actual methamphetamine was recovered by the police but the defendant confessed to manufacturing methamphetamine once, explained how methamphetamine is made, and admitted he had used methamphetamine a week before the police interview. People v Hartman, 498 Mich 934, 934 (2015) (reversing the Court of Appeals’ judgment for the reasons stated in the Court of Appeals dissenting opinion);9 see People v Hartman, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2015 (Docket No. 320032) (Beckering, P.J., concurring in part and dissenting in part), p 3-4. Defendant’s confession was properly admitted because there was sufficient circumstantial evidence to establish the corpus delicti of the crime — that methamphetamine existed and was possessed by the defendant — where the defendant lived in a bedroom containing a methamphetamine laboratory,10 a witness testified to observing the defendant manufacture methamphetamine, and pharmacy records indicated that the defendant “purchased several ingredients that are commonly used to manufacture methamphetamine.” Hartman, unpub op at 2-3.
4.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 court11 that an individual has been convicted of a methamphetamine-related offense. When violation of MCL 333.7403 involves possession of methamphetamine, MCL 333.7403 is a methamphetamine-related offense. MCL 28.122(b)(i). For more information on the Methamphetamine Abuse Reporting Act, see Section 1.6.
5.Necessarily Included Lesser Offense
Simple possession under MCL 333.7403 can be a necessarily included lesser offense of possession with intent to deliver a controlled substance under MCL 333.7402 where the offenses involve the same amount of the controlled substance; however, “if the offenses involve differently categorized statutory amounts, possession will be treated as a cognate lesser offense.” Robar, 321 Mich App at 130.
“[T]he elements of simple possession are: (1) that a defendant possessed a controlled substance; (2) that the defendant knew he or she possessed the controlled substance; and (3) the amount of the controlled substance, if applicable.” Robar, 321 Mich App at 131, citing M Crim JI 12.3; MCL 333.7403. “[T]he statutory ‘language concerning a prescription or other authorization refers to an exemption rather than an element of the crime.’” Robar, 321 Mich App at 132, quoting People v Pegenau, 447 Mich 278, 292 (2004).
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 333.7403(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 333.7403(4).
2 Note that the M Crim JI 12.5 applies to controlled substances and does not specifically reference controlled substance analogues or prescription forms.
3 Michigan’s drug schedules are codified at MCL 333.7212 – MCL 333.7220. See Section 1.2(B) for more information about the drug schedules.
4 See Section 1.4 for more information about major controlled substance offenses.
5 See discussion of the meaning of the term mixture in Section 2.2(C).
6 Before March 1, 2003, the court could also punish the defendant by imposing lifetime probation. This penalty option was deleted by 2002 PA 665. Accordingly, the probation officer for an individual who was sentenced to lifetime probation under MCL 333.7403(2)(a)(iv) as it existed before March 1, 2003, and who has served five or more years of his or her probationary period may recommend to that court that it discharge the individual from probation, and the court may grant discharge. MCL 333.7403(6). Alternatively, the individual may petition the court for resentencing under the court rules if he or she provides notice to the prosecutor. Id. The individual is permitted to file more than one motion seeking resentencing under this provision. Id.
7 The Michigan Medical Marihuana Act, MCL 333.26421 et seq., is discussed in Chapter 7.
8 For a more detailed analysis of authorization as a defense, see Chapter 7.
9 “An order of [the Michigan Supreme Court] is binding precedent if it constitutes a final disposition of an application and contains a concise statement of the applicable facts and reasons for the decision.” Defrain v State Farm Mut Ins Co, 491 Mich 359, 369 (2012) (“By referring to the Court of Appeals dissent, this Court adopted the applicable facts and reasons supplied by the dissenting judge as if they were its own.”)
10 The bedroom was deemed to be a methamphetamine laboratory because several ingredients and instrumentalities commonly used for manufacturing methamphetamine were discovered in the bedroom, including a pill grinder, lithium batteries, plastic bottles, Coleman fuel, aluminum foil, Drano, fertilizer, coffee filters, plastic tubing, hydrochloric acid, and a package of Sudafed. People v Hartman, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2015 (Docket No. 320032) (Beckering, P.J., concurring in part and dissenting in part), p 2-3. Additionally, at the time of the search, there was a very strong chemical odor in the air and items recovered from the bedroom ultimately tested positive for chemicals that are produced when making methamphetamine. Id. at 3.
11 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).