3.8Ownership, Possession, Use, or Provision of a Location and/or the Materials for the Manufacture of a Controlled Substance, Counterfeit Substance, or a Controlled Substance Analogue

A.Statutory Authority

1.Generally

“A person shall not do any of the following:

(a) Own, possess, or use a vehicle, building, structure, place, or area that he or she knows or has reason to know is to be used as a location to manufacture a controlled substance in violation of [MCL 333.7401] or a counterfeit substance or a controlled substance analogue in violation of [MCL 333.7402].

(b) Own or possess any chemical or any laboratory equipment that he or she knows or has reason to know is to be used for the purpose of manufacturing a controlled substance in violation of [MCL 333.7401] or a counterfeit substance or a controlled substance analogue in violation of [MCL 333.7402].

(c) Provide any chemical or laboratory equipment to another person knowing or having reason to know that the other person intends to use that chemical or laboratory equipment for the purpose of manufacturing a controlled substance in violation of [MCL 333.7401] or a counterfeit substance or a controlled substance analogue in violation of [MCL 333.7402].” MCL 333.7401c(1).

2.Exceptions

MCL 333.7401c “does not apply to a violation involving only a substance described in [MCL 333.7214(a)(iv) (cocaine-related substance)] or marihuana, or both.” MCL 333.7401c(3).

B.Relevant Jury Instructions

•M Crim JI 12.1 addresses the unlawful manufacture of a controlled substance.

•M Crim JI 12.1a addresses the elements of MCL 333.7401c(1)(a) (owning, possessing or using vehicles, buildings, structures or areas used for manufacturing controlled substances).

•M Crim JI 12.1b addresses the elements of MCL 333.7401c(1)(b) (owning or possessing chemicals or laboratory equipment for manufacturing controlled substances).

•M Crim JI 12.1c addresses the elements of MCL 333.7401c(1)(c) (providing chemicals or laboratory equipment for manufacturing controlled substances).

•M Crim JI 12.7 defines possession in the context of controlled substance offenses.

C.Penalties

1.Generally

Except as otherwise provided by MCL 333.7401c(2)(b)-(f), violation of MCL 333.7401c is a felony punishable by:

•imprisonment for not more than 10 years; or

•a fine of not more than $100,000; or

•both. MCL 333.7401c(2)(a).

MCL 333.7401c “does not prohibit the person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate [MCL 333.7401c].” MCL 333.7401c(4).

“A term of imprisonment imposed under [MCL 333.7401c] may be served consecutively to any other term of imprisonment imposed for a violation of law arising out of the same transaction.” MCL 333.7401c(5).

2.Exceptions

MCL 333.7401c(2)(b)-(f) specify different penalties when certain circumstances are present:

MCL 333.7401c(2)(b). If the violation of MCL 333.7401c(1) is committed in the presence of a minor, it is a felony punishable by:

•imprisonment for not more than 20 years; or

•a fine of not more than $100,000; or

•both. MCL 333.7401c(2)(b).

MCL 333.7401c(2)(c). If the violation of MCL 333.7401c(1) involves the unlawful generation, treatment, storage, or disposal of a hazardous waste, it is a felony punishable by:

•imprisonment for not more than 20 years; or

•a fine of not more than $100,000; or

•both. MCL 333.7401c(2)(c).

“The court may, as a condition of sentence, order a person convicted of a violation punishable under [MCL 333.7401c(2)(c)] to pay response activity costs arising out of the violation.” MCL 333.7401c(6).

MCL 333.7401c(2)(d). If the violation of MCL 333.7401c(1) occurs within 500 feet of a residence, business establishment, school property,¹ or church or other house of worship, it is a felony punishable by:

•imprisonment for not more than 20 years; or

•a fine of not more than $100,000; or

•both. MCL 333.7401c(2)(d).

MCL 333.7401c(2)(e). If the violation of MCL 333.7401c(1) involves the possession, placement, or use of a firearm or any other device designed or intended to be used to injure another person, it is a felony punishable by:

•imprisonment for not more than 25 years; or

•a fine of not more than $100,000; or

•both. MCL 333.7401c(2)(e).

MCL 333.7401c(2)(f). If the violation of MCL 333.7401c(1) involves or is intended to involve the manufacture of a substance described in MCL 333.7214(c)(ii) (any substance containing methamphetamine or its salts, stereoisomers, or salts of stereoisomers), it is a felony punishable by:

•imprisonment for not more than 20 years; or

•a fine of not more than $25,000: or

•both. MCL 333.7401c(2)(f).

D.Issues

1.Caselaw

Sufficient evidence to support a conviction of operating or maintaining a methamphetamine laboratory and of doing so within 500 feet of a residence existed where it was reasonable to infer that “defendant used the garage[,]” he “knew or had reason to know that the garage was to be used for manufacturing methamphetamine[,]” and testimony established that “the garage was within five hundred feet of a residence.” People v Meshell, 265 Mich App 616, 624-625 (2005). The defendant’s use of the garage and knowledge of its use was established by testimony that police observed the defendant walking out of a garage inside which methamphetamine was cooking or “off-gassing” and giving off steam or smoke visible from outside of the garage. Id. at 624-625. There was also a strong chemical odor detectable near the garage, and the methamphetamine had not been cooking for very long at the time police observed the defendant leaving the garage. Id. at 625. Further, the defendant was the only person in the area of the garage at the time. Id. Finally, testimony established that the garage was approximately 22 feet from a residence. Id.

2.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 court² that an individual has been convicted of a methamphetamine-related offense. MCL 333.7401c is a methamphetamine-related offense when its violation involves the manufacture of methamphetamine. MCL 28.122(b)(i). For more information on the Methamphetamine Abuse Reporting Act, see Section 1.6.