Section 333.7401c

Michigan Public Health Code Section 7401c (MCL 333.7401c): Owning or Possessing Property or Equipment Used to Manufacture Controlled Substances

1. Definition and Elements of the Crime

MCL 333.7401c generally criminalizes owning or possessing equipment or structures used to manufacture controlled substances. Note: you do not need to be personally involved in the manufacture to be liable. You just need to have ownership or control of the equipment or structure. Most cases under MCL 333.7401c involve methamphetamine (meth), the most common homemade controlled substance. Importantly, MCL 333.7401c does not apply when the crime involves marijuana or cocaine.

MCL 333.7401c has three theories of liability. First is “owning, possessing, or using vehicles, buildings, structures, or areas used for manufacturing controlled substances,” for which the prosecution must prove the following beyond a reasonable doubt:

1. First, the defendant owned, possessed, or used a vehicle, building, structure, or area.
2. Second, the property was used to manufacture a controlled substance.
3. Third, the defendant knew or had reason to know that the property was used to manufacture a controlled substance.

The second theory is “owning or possessing chemicals or laboratory equipment for manufacturing controlled substances,” for which the prosecution must prove the following beyond a reasonable doubt:

1. First, the defendant owned or possessed chemical or laboratory equipment.
2. Second, the defendant knew or had reason to know that the chemical or laboratory equipment was going to be used to manufacture a controlled substance.

The third theory is “providing chemicals or laboratory equipment for manufacturing controlled substances,” for which the prosecution must prove the following beyond a reasonable doubt:

1. First, the defendant provided chemical or laboratory equipment to another person.
2. Second, the defendant knew or had reason to know that the chemical or laboratory equipment was going to be used to manufacture controlled substances.

As you’ll learn below, for each theory, there are additional elements that the prosecution can use to ratchet up the penalties.

2. Examples

A man lets a down-on-his luck friend crash at his house until the friend can get back on his feet. The friend is a known meth addict. After he moves in, the friend frequently holes up in his bedroom for several hours at a time. During these periods, chemical odors emanate from the bedroom. Several empty Sudafed packages are also found in the garbage (Sudafed is routinely used to make meth).

A woman hosts a house party. While pouring mixed drinks with soda, a partygoer comes up to her and asks to use an empty pop bottle. He explains that he wants the bottle to make meth (mixing all the necessary ingredients into a pop bottle—the “one pot” method—is a popular way to make meth). The woman obliges and gives the man an empty pop bottle.

3. Related Offenses

Other similar or related offenses include:

1. Manufacture of a controlled substance, MCL 333.7401
2. Possession of a controlled substance, MCL 333.7403
3. Maintaining a drug house, MCL 333.7405

4. Defenses to Owning or Possessing Property or Equipment Used to Manufacture Controlled Substances

Common defenses in MCL 333.7401c prosecutions include (1) lack of knowledge and (2) lack of possession.

Take the man housing his ne’er-do-well friend. Given the friend’s history, the chemical odors, and the empty Sudafed boxes, a prosecutor could ordinarily build a strong case that the man knew his house was being used to make meth. But say the man worked a lot—long hours, frequent business trips, etc. And say the friend had promised before he moved in that he was done using meth (depending on the circumstances, the friend might even testify in the man’s defense). In this scenario, the man would have a strong argument that the prosecution cannot prove that he knew or should have known his house was being used to make meth.

Now consider the woman who provisioned the pop bottle. Seems innocuous, right? Is this really “laboratory equipment?” Yes. Under MCL 333.7401c(7)(b), “laboratory equipment” is defined as “any equipment, device, or container used or intended to be used in the process of manufacturing a controlled substance, counterfeit substance, or controlled substance analogue.” So even a pop bottle can be “laboratory equipment.” But suppose the woman says that the partygoer never announced that he intended to use the pop bottle to make meth. In that case, the woman could argue—like the man putting up his friend—that she did not have the requisite knowledge.

5. Penalties

An offense under MCL 333.7401c is generally punishable by up to 10 years in prison and a fine of up to $100,000. But certain aggravating factors, if proven beyond a reasonable doubt by the prosecutor, can elevate the penalties.

First, if the offense was committed in the presence of a minor, it is punishable by up to 20 years in prison and a fine of up to $100,000.

Second, if the offense involved the unlawful treatment, storage, or disposal of a hazardous waste, it is punishable by up to 20 years in prison and a fine of up to $100,000.

Third, if the offense occurred within 500 feet of a residence, business establishment, school property, or church, it is punishable by up to 20 years in prison and a fine of up to $100,000.

Fourth, if the offense involved the possession, placement, or use of a firearm or any other device designed or intended to be used to injure another person, it is punishable by up to 25 years in prison and a fine of up to $100,000.

Fifth, if the offense involved or intended to involve the manufacture of methamphetamine, it is punishable by up to 20 years in prison and a fine of up to $25,000.

Finally, a judge can order a term of imprisonment under MCL 333.7401c to be served consecutively to any term of imprisonment imposed for another offense arising out of the same transaction. In other words, the sentences can be stacked.

6. Criminal Defense for Owning or Possessing Property or Equipment Used to Manufacture Controlled Substances

Prosecutors trying to rid their jurisdictions of illicit drugs—especially methamphetamine—vigorously pursue charges under MCL 333.7401c. This is true even if you never personally manufactured, possessed, or used any drugs. If you’re under investigation for or have been charged with a crime under MCL 333.7401c, you need to hire a criminal defense attorney as soon as possible. Grabel & Associates has been in business for more than 20 years and has handled hundreds of drug cases. Our highly respected attorneys know what it takes to obtain the best result in your case.

For more information about owning or possessing property or equipment used to manufacture controlled substances and to talk about your case, contact Grabel & Associates at (800) 342-7896.