Section 333.7403

Michigan Public Health Code Section 7403 (MCL 333.7403): Unlawful Possession of a Controlled Substance

1. Definition and Elements of the Crime

MCL 333.7403 generally makes it illegal to possess a controlled substance. Possession of a controlled substance is likely the most common drug crime in Michigan. Most cases involve people possessing drugs for personal use, as opposed to manufacturing or delivering (i.e., dealing) drugs. The distinction is important because simply possessing a controlled substance is treated less harshly that manufacturing or delivery.

Possession of a controlled substance has two general elements, both of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant possessed a controlled substance.
2. Second, the defendant knew he possessed a controlled substance.

As you’ll learn below, another element in every case is the type of drug and the amount. These two variables will dictate the penalty for the crime.

2. Examples

A man is driving down the road. A police officer pulls him over for speeding. The officer asks to search the car, and the man consents. The officer finds cocaine in the center console.

A police officer pulls a woman over for running a stop sign (many cases under MCL 333.7403 begin with traffic stops). After issuing a ticket, the officer develops a hunch that the woman has drugs on her. He asks for consent to search her car. She refuses. He radios for a K-9 unit to bring in a drug-sniffing dog. The K-9 unit shows up 20 minutes later. The dog alerts, indicating the presence of drugs, and police find methamphetamine (meth) in the woman’s pocket.

3. Related Offenses

Other similar or related offenses include:

1. Possession with intent to deliver a controlled substance, MCL 333.7401
2. Use of a controlled substance, MCL 333.7404

4. Defenses to Possessing a Controlled Substance

Common defenses to possession of a controlled substance include (1) lack of knowledge, (2) lack of possession, and (3) improper search.

Take the man with cocaine in his center console. Can he argue lack of possession since he wasn’t physically holding the cocaine? No. “Possession” under the law can be established by knowledge of the drug’s presence and the right of control over the drug. But suppose the man wasn’t the registered owner of the car. He had recently borrowed the car from a friend, and he adamantly maintains that he had no idea there were drugs in the center console. In that case, he would have a viable lack-of-possession or lack-of-knowledge defense. If the case goes to trial, it will be up to the jury to decide whether they believe him.

Now consider the woman with meth in her pocket. There’s no question that she possessed the meth. Is her case hopeless? Not by a longshot. Under the Fourth Amendment to the United States Constitution, police cannot engage in “unreasonable searches and seizures.” In Rodriguez v. United States, the United States Supreme Court held that extending a routine traffic stop to bring in a drug-sniffing dog constitutes an unreasonable seizure. Here, then, the meth found in the woman’s pocket will be inadmissible. And without the meth as evidence, the police cannot sustain a charge for possession of a controlled substance. So even though the woman is factually guilty, she will likely have a stronger defense than the man with cocaine in the center console, who is factually innocent.

5. Penalties

Again, penalties under MCL 333.7403 generally depend on (1) the controlled substance and (2) the amount. In Michigan, controlled substances are divided by “schedule” depending on their medical use and their potential for abuse or dependency, with schedule 1 drugs being the most “serious.”

For certain schedule 1 and 2 narcotics (including heroin and cocaine), the penalties are as follows:

1. If 1,000 grams or more were involved, it is a felony punishable by up to life in prison and a fine of up to $1,000,000
2. If 450 to 1,000 grams were involved, it is a felony punishable by up to 30 years in prison and a fine of up to $500,000
3. If 50 to 450 grams were involved, it is a felony punishable by up to 20 years in prison and a fine of up to $250,000
4. If 25 to 50 grams were involved, it is a felony punishable by up to 4 years in prison and a fine of up to $25,000.
5. If less than 25 grams were involved, it is a felony punishable by up to 4 years in prison and a fine of up to $25,000.

If the offense involved any amount of ecstasy or methamphetamine, it is a felony punishable by up to 10 years in prison and a fine of up to $15,000.

If the offense involved certain schedule 1, 2, 3, or 4 controlled substances, it is a felony punishable by up to 2 years in prison and fine of up to $2,000.

If the offense involved lysergic acid diethylamide, peyote, mescaline, dimethyltryptamine, psilocyn, psilocybin, or a controlled substance classified in schedule 5, it is a misdemeanor punishable by up to 1 year in jail and a fine of up to $2,000.

6. Criminal Defense for Possession of a Controlled Substance

If you’re charged with possession of a controlled substance, a skilled attorney will often be able to spot a meritorious defense in your case. Otherwise, an attorney can often work out a deal with the prosecutor that leaves you without a conviction on your record. Long story short, if you’re under investigation for or have been charged with possession of a controlled substance, call 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 possession of a controlled substance and to talk about your case, contact Grabel & Associates at (800) 342-7896.