3.7Obtaining a Controlled Substance by Misrepresentation, Fraud, Deception, or Forgery

A.Statutory Authority

“A person shall not knowingly or intentionally . . . [a]cquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.” MCL 333.7407(1)(c).

B.Relevant Jury Instruction

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

C.Penalties

Violation of MCL 333.7407(1)(c) is a felony punishable by:

•imprisonment for not more than four years; or

•a fine of not more than $30,000; or

•both. MCL 333.7407(3).

D.Issues

1.Constructive Possession

Constructive possession¹ of a controlled substance by means of forgery existed where the defendant gave a forged prescription to a coworker, who agreed to take it to a pharmacist, pick it up, and deliver it to the defendant. People v Davis (Neil), 109 Mich App 521, 525, 527 (1981) (finding it irrelevant that the coworker, who did not know the prescription was forged, was apprehended before he could actually deliver the substance to the defendant).

2.Forgery

It is not a defense to MCL 333.7407(1)(c) that the pharmacist to whom a forged prescription was presented knew or had reason to know that the prescription was forged and nonetheless filled it. Davis (Neil), 109 Mich App at 524. There is no requirement under MCL 333.7407(1)(c) that the supplier of the proscribed substance be deceived by the forged prescription. Id.