7.3​Establishing Authorization as a Defense

The defendant bears the burden of proving his or her authorization. People v Pegenau, 447 Mich 278, 289 (1994). MCL 333.7531 provides:

“(1) It is not necessary for this state to negate any exemption or exception in [Article 7 of the PHC] in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under [Article 7 of the PHC]. The burden of proof of an exemption or exception is upon the person claiming it.

(2) In the absence of proof that a person is the authorized holder of an appropriate license or order form issued under [Article 7 of the PHC], the person is presumed not to be the holder of the license or order form. The burden of proof is upon the person to rebut the presumption.”

To satisfy the burden of proof, the defendant must present some competent evidence beyond a mere assertion of his or her authorization. Pegenau, 447 at 294-296 (holding that the defendant’s self-serving assertion that he possessed a controlled substance pursuant to a valid prescription did not satisfy his burden of production). The “defendant bears both the burden of production and the burden of persuasion” to establish any claim of authorization, “and must do so by a preponderance of the evidence.” People v Robar, 321 Mich App 106, 142 (2017). See also People v Baham, 321 Mich App 228, 244-245 (2017) (holding that “if defendant believed he was entitled to a personal-use defense, the burden was on defendant to raise the issue as an affirmative defense and to present some competent evidence of preparation or compounding for personal use”).

“[P]ursuant to MCL 333.7531(1), when offering proof of the elements of the offense, the prosecution has no obligation to negate any exemption or exception in Article 7 of the Public Health Code[.]” Baham, 321 Mich App at 244 (noting that the personal use exception in MCL 333.7106(3) is one such exception and that it operates as an affirmative defense).²⁴⁵ 

Placing the burden of proof on a defendant who claims he or she was authorized to engage in the conduct at issue does not violate the defendant’s constitutional right to due process because lack of authorization is not an element of the crime. Pegenau, 447 Mich at 292-293.

M Crim JI 12.4a “must be used if the defense presents competent evidence that the defendant had a valid prescription for, or was otherwise authorized to manufacture, possess or use, the controlled substance.” M Crim JI 12.4a, Use Note, citing Robar, 321 Mich App 106.