1.4Major Controlled Substance Offenses
Certain offenses identified in the Code of Criminal Procedure as major controlled substance offenses are subject to specific procedural limitations and sentencing requirements not applicable to other controlled substance offenses. Sentencing issues unique to major controlled substance offenses are discussed in Chapter 6.
Major controlled substance offense is defined by MCL 761.2, as “either or both” of the following offenses:
•A violation of MCL 333.7401(2)(a), which criminalizes the manufacture, creation, delivery, or possession with the intent to manufacture, create or deliver a controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in MCL 333.7214(a)(iv) (cocaine-related substances). MCL 761.2(a).
•A violation of MCL 333.7403(2)(a)(i)-(iv), which criminalizes the knowing or intentional possession of a controlled substance, a controlled substance analogue, or a prescription form involving a controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in MCL 333.7214(a)(iv) (cocaine-related substances) and is in an amount of 25 grams or more of any mixture containing the substance. MCL 761.2(b).
•Conspiracy to commit MCL 333.7401(2)(a) or MCL 333.7403(2)(a)(i)-(iv). MCL 761.2(c).
A.Lesser Included Major Controlled Substance Offenses
“Upon an indictment for an offense specified in [MCL 333.7401(2)(a)(i) or MCL 333.7401(2)(a)(ii) or MCL 333.7403(2)(a)(i) or MCL 333.7403(2)(a)(ii)], or conspiracy to commit 1 or more of these offenses, the jury, or judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment but may find the accused guilty of a degree of that offense inferior to that charged in the indictment only if the lesser included offense is a major controlled substance offense. A jury shall not be instructed as to other lesser included offenses involving the same controlled substance nor as to an attempt to commit either a major controlled substance offense or a lesser included offense involving the same controlled substance. The jury shall be instructed to return a verdict of not guilty of an offense involving the controlled substance at issue if it finds that the evidence does not establish the defendant’s guilt as to the commission of a major controlled substance offense involving that controlled substance. A judge in a trial without a jury shall find the defendant not guilty of an offense involving the controlled substance at issue if the judge finds that the evidence does not establish the defendant’s guilt as to the commission of a major controlled substance offense involving that controlled substance.” MCL 768.32(2).
In other words, a defendant charged with violating or conspiring to violate MCL 333.7401(2)(a)(i) or (ii) or MCL 333.7403(2)(a)(i) or (ii) may only be convicted on the basis of that charge or on the lesser offenses of MCL 333.7401(2)(a)(iii) or (iv) or MCL 333.7403(2)(a)(iii) or (iv).
B.Procedural Issues Involving Major Controlled Substance Offenses
Although Article 7 of the PHC does not refer to major controlled substance offenses specifically,1 MCL 333.7415 sets forth specific procedures applicable to offenses that are defined by the Code of Criminal Procedure as major controlled substance offenses.
1.Limitations on Reduction of Charge
If a magistrate determines after a preliminary examination that there is probable cause for charging a defendant with violating or conspiring to violate MCL 333.7401(2)(a)(i)-(ii) or MCL 333.7403(2)(a)(i)-(ii), the prosecutor cannot reduce the charge against the defendant where the defendant was arraigned on a warrant. MCL 333.7415(1)-(2).
Any dismissal must be with prejudice after a defendant is arraigned on a warrant or an indictment or information for violating or conspiring to violate MCL 333.7401(2)(a)(i)-(ii) or MCL 333.7403(2)(a)(i)-(ii). MCL 333.7415(1)-(2).
After a defendant is arraigned on an indictment or information for violating or conspiring to violate MCL 333.7401(2)(a)(i)-(ii) or MCL 333.7403(2)(a)(i)-(ii), the court cannot “accept a plea of guilty, guilty but mentally ill, or nolo contendere unless, with the consent of the prosecuting attorney on the record,” the defendant pleads to at least one of the following felonies:
•MCL 333.7401(2)(a)(i), MCL 333.7401(2)(a)(ii), MCL 333.7401(2)(a)(iii), or MCL 333.7401(2)(a)(iv);
•MCL 333.7403(2)(a)(i), MCL 333.7403(2)(a)(ii), MCL 333.7403(2)(a)(iii), or MCL 333.7403(2)(a)(iv);
•or conspiracy to violate one of the above-listed felonies. MCL 333.7415(2)(a)-(c).
1 Major controlled substances are defined and referenced in the Code of Criminal Procedure, MCL 760.1 et seq.