HOUSE BILL No. 5394 November 1, 2001, Introduced by Reps. McConico, Julian, Kowall and Hardman and referred to the Committee on Criminal Justice. A bill to amend 1978 PA 368, entitled "Public health code," by amending sections 7401 and 7403 (MCL 333.7401 and 333.7403), as amended by 2000 PA 314. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 7401. (1) Except as authorized by this article, a 2 person shall not manufacture, create, deliver, or possess with 3 intent to manufacture, create, or deliver a controlled substance, 4 a prescription form, an official prescription form, or a counter- 5 feit prescription form. A practitioner licensed by the adminis- 6 trator under this article shall not dispense, prescribe, or 7 administer a controlled substance for other than legitimate and 8 professionally recognized therapeutic or scientific purposes or 9 outside the scope of practice of the practitioner, licensee, or 10 applicant. 04746'01 TVD 2 1 (2) A person who violates this section as to: 2 (a) A controlled substance classified in schedule 1 or 2 3 that is a narcotic drug or a drug described in section 4 7214(a)(iv) and: 5 (i) Which is in an amount of 650 grams or more of any mix- 6 ture containing that substance is guilty of a felony punishable, 7 EXCEPT AS PROVIDED IN SUBSECTION (4), by imprisonment for life or 8 any term of years but not less than 20 years. 9 (ii) Which is in an amount of 225 grams or more, but less 10 than 650 grams, of any mixture containing that substance is 11 guilty of a felony and shall, EXCEPT AS PROVIDED IN SUBSECTION 12 (4), be imprisoned for not less than 20 years nor more than 30 13 years. 14 (iii) Which is in an amount of 50 grams or more, but less 15 than 225 grams, of any mixture containing that substance is 16 guilty of a felony and shall, EXCEPT AS PROVIDED IN SUBSECTION 17 (4), be imprisoned for not less than 10 years nor more than 20 18 years. 19 (iv) Which is in an amount less than 50 grams, of any mix- 20 ture containing that substance is guilty of a felony and shall, 21 EXCEPT AS PROVIDED IN SUBSECTION (4), be imprisoned for not less 22 than 1 year nor more than 20 years, and may be fined not more 23 than $25,000.00, or placed on probation forlifeA PERIOD OF 24 NOT MORE THAN 5 YEARS. 25 (b) Either of the following: 04746'01 3 1 (i) A substance described in section 7214(c)(ii) is guilty 2 of a felony punishable by imprisonment for not more than 20 years 3 or a fine of not more than $25,000.00, or both. 4 (ii) Any other controlled substance classified in schedule 5 1, 2, or 3, except marihuana is guilty of a felony punishable by 6 imprisonment for not more than 7 years or a fine of not more than 7 $10,000.00, or both. 8 (c) A substance classified in schedule 4 is guilty of a 9 felony punishable by imprisonment for not more than 4 years or a 10 fine of not more than $2,000.00, or both. 11 (d) Marihuana or a mixture containing marihuana is guilty of 12 a felony punishable as follows: 13 (i) If the amount is 45 kilograms or more, or 200 plants or 14 more, by imprisonment for not more than 15 years or a fine of not 15 more than $10,000,000.00, or both. 16 (ii) If the amount is 5 kilograms or more but less than 45 17 kilograms, or 20 plants or more but fewer than 200 plants, by 18 imprisonment for not more than 7 years or a fine of not more than 19 $500,000.00, or both. 20 (iii) If the amount is less than 5 kilograms or fewer than 21 20 plants, by imprisonment for not more than 4 years or a fine of 22 not more than $20,000.00, or both. 23 (e) A substance classified in schedule 5 is guilty of a 24 felony punishable by imprisonment for not more than 2 years or a 25 fine of not more than $2,000.00, or both. 26 (f) An official prescription form or a counterfeit official 27 prescription form is guilty of a felony punishable by 04746'01 4 1 imprisonment for not more than 20 years or a fine of not more 2 than $25,000.00, or both. 3 (g) A prescription form or a counterfeit prescription form 4 other than an official prescription form or a counterfeit offi- 5 cial prescription form is guilty of a felony punishable by 6 imprisonment for not more than 7 years or a fine of not more than 7 $5,000.00, or both. 8 (3) A term of imprisonment imposed under subsection (2)(a) 9 or section 7403(2)(a)(i), (ii), OR (iii), or (iv) shallMAY be 10 imposed to run consecutively with any term of imprisonment 11 imposed forthe commission of another felonyANOTHER VIOLATION 12 OF SUBSECTION (2)(A) OR SECTION 7403(2)(A)(i), (ii), OR (iii) IF 13 THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE THAT THE 14 DEFENDANT WAS A PRINCIPAL ADMINISTRATOR, LEADER, OR ORGANIZER OF 15 AT LEAST 5 OTHER INDIVIDUALS IN EACH OF THE VIOLATIONS AND THAT 16 THE DEFENDANT RECEIVED SUBSTANTIAL INCOME WITHIN A 12-MONTH 17 PERIOD FROM THOSE VIOLATIONS. IN DETERMINING WHETHER THE 18 DEFENDANT WAS A PRINCIPAL ADMINISTRATOR, LEADER, OR ORGANIZER, 19 THE COURT SHALL CONSIDER WHETHER THE DEFENDANT EXERCISED SIGNIFI- 20 CANT DECISION-MAKING AUTHORITY, THE NATURE OF THE DEFENDANT'S 21 PARTICIPATION IN THE COMMISSION OF THE CRIME, WHETHER THE 22 DEFENDANT EXERCISED A SIGNIFICANT DEGREE OF PARTICIPATION IN 23 PLANNING OR ORGANIZING THE OFFENSE, THE NATURE AND SCOPE OF THE 24 ILLEGAL ACTIVITY, AND WHETHER THE DEFENDANT EXERCISED A SIGNIFI- 25 CANT DEGREE OF CONTROL AND AUTHORITY OVER OTHERS. THE COURT 26 SHALL NOT IMPOSE CONSECUTIVE TERMS OF IMPRISONMENT UNDER THIS 27 SUBSECTION IF THE DEFENDANT IS CONVICTED OF ATTEMPTING TO VIOLATE 04746'01 5 1 OR CONSPIRING TO VIOLATE SUBSECTION (2)(A)(i), (ii), OR (iii) OR 2 SECTION 7403(2)(A)(i), (ii), OR (iii) AND ALSO VIOLATING SUBSEC- 3 TION (2)(A)(i), (ii), OR (iii) OR SECTION 7403(2)(A)(i), (ii), OR 4 (iii) IF THE CONVICTIONS ARISE OUT OF THE SAME COURSE OF CRIMINAL 5 CONDUCT. An individual subject to a mandatory term of imprison- 6 ment under subsection (2)(a) or section 7403(2)(a)(i), (ii), 7 (iii), or (iv) is not eligible for probation, suspension of that 8 sentence, or parole during that mandatory term, except to the 9 extent that those provisions permit probation,for life,and 10 shall not receive a reduction in that mandatory term of imprison- 11 ment by disciplinary credits or any other type of sentence credit 12 reduction. 13 (4) The court may depart from the minimum term of imprison- 14 ment authorized under subsection(2)(a)(ii)(2)(A)(i), (ii), 15 (iii), or (iv) if the court finds on the record that there are 16 substantial and compelling reasons to do so. IF THE STATUTORY 17 MINIMUM SENTENCE FOR THAT VIOLATION IS WITHIN THE SENTENCING 18 RANGE APPLICABLE TO THAT DEFENDANT UNDER SENTENCING GUIDELINES, 19 OR EXCEEDS THAT RANGE, THE COURT SHALL IMPOSE A SENTENCE WITHIN 20 THE SENTENCING RANGE ESTABLISHED UNDER SENTENCING GUIDELINES. In 21 addition, if any of the following apply, the court may depart 22 from the minimum term of imprisonment authorized under subsection 23(2)(a)(ii)(2)(A)(i), (ii), (iii), or (iv) if the individual 24 has not previously been convicted of a felony or an assaultive 25 crime and has not been convicted of another felony or assaultive 26 crime arising from the same transaction as the violation of this 27 section: 04746'01 6 1 (a) The person is within the jurisdiction of the circuit 2 court under section 606 of the revised judicature act of 1961, 3 1961 PA 236, MCL 600.606, or section 4 of chapter XIIA of the 4 probate code of 1939, 1939 PA 288, MCL 712A.4. 5 (b) The person is being sentenced under section 18(1)(n) of 6 chapter XIIA of the probate code of 1939, 1939 PA 288, 7 MCL 712A.18. 8 (5) As used in this section: 9 (a) "Assaultive crime" means a violation of sections 81 to 10 90 of the Michigan penal code, 1931 PA 328, MCL 750.81 to 11 750.90. 12 (b) "Plant" means a marihuana plant that has produced coty- 13 ledons or a cutting of a marihuana plant that has produced 14 cotyledons. 15 Sec. 7403. (1) A person shall not knowingly or intention- 16 ally possess a controlled substance, a controlled substance anal- 17 ogue, or an official prescription form or a prescription form 18 unless the controlled substance, controlled substance analogue, 19 official prescription form, or prescription form was obtained 20 directly from, or pursuant to, a valid prescription or order of a 21 practitioner while acting in the course of the practitioner's 22 professional practice, or except as otherwise authorized by this 23 article. 24 (2) A person who violates this section as to: 25 (a) A controlled substance classified in schedule 1 or 2 26 that is a narcotic drug or a drug described in section 27 7214(a)(iv), and: 04746'01 7 1 (i) Which is in an amount of 650 grams or more of any 2 mixture containing that substance is guilty of a felony and shall 3 be imprisoned for life except as otherwise provided in this 4 subparagraph. A person convicted of violating this subparagraph 5 may, EXCEPT AS PROVIDED IN SUBSECTION (4), be punished as pro- 6 vided by law by imposing a sentence of imprisonment for any term 7 of years but not less than 25 years if any of the following 8 apply: 9 (A) The person is within the jurisdiction of the circuit 10 court under section 606 of the revised judicature act of 1961, 11 1961 PA 236, MCL 600.606, or section 4 of chapter XIIA of the 12 probate code of 1939, 1939 PA 288, MCL 712A.4. 13 (B) The person is being sentenced under section 18(1)(n) of 14 chapter XIIA of the probate code of 1939, 1939 PA 288, 15 MCL 712A.18. 16 (ii) Which is in an amount of 225 grams or more, but less 17 than 650 grams, of any mixture containing that substance is 18 guilty of a felony and shall, EXCEPT AS PROVIDED IN SUBSECTION 19 (4), be imprisoned for not less than 20 years nor more than 30 20 years. 21 (iii) Which is in an amount of 50 grams or more, but less 22 than 225 grams, of any mixture containing that substance is 23 guilty of a felony and shall, EXCEPT AS PROVIDED IN SUBSECTION 24 (4), be imprisoned for not less than 10 years nor more than 20 25 years. 26 (iv) Which is in an amount of 25 grams or more, but less 27 than 50 grams of any mixture containing that substance is guilty 04746'01 8 1 of a felony and shall, EXCEPT AS PROVIDED IN SUBSECTION (4), be 2 imprisoned for not less than 1 year and not more than 4 years, 3 and may be fined not more than $25,000.00 or placed on probation 4 forlifeA PERIOD OF NOT MORE THAN 5 YEARS. 5 (v) Which is in an amount less than 25 grams of any mixture 6 containing that substance is guilty of a felony punishable by 7 imprisonment for not more than 4 years or a fine of not more than 8 $25,000.00, or both. 9 (b) Either of the following: 10 (i) A substance described in section 7214(c)(ii) is guilty 11 of a felony punishable by imprisonment for not more than 10 years 12 or a fine of not more than $15,000.00, or both. 13 (ii) A controlled substance classified in schedule 1, 2, 3, 14 or 4, except a controlled substance for which a penalty is pre- 15 scribed in subdivision (a), (b)(i), (c), or (d), or a controlled 16 substance analogue is guilty of a felony punishable by imprison- 17 ment for not more than 2 years or a fine of not more than 18 $2,000.00, or both. 19 (c) Lysergic acid diethylamide, peyote, mescaline, dimethyl- 20 tryptamine, psilocyn, psilocybin, or a controlled substance clas- 21 sified in schedule 5, is guilty of a misdemeanor punishable by 22 imprisonment for not more than 1 year or a fine of not more than 23 $2,000.00, or both. 24 (d) Marihuana, is guilty of a misdemeanor punishable by 25 imprisonment for not more than 1 year or a fine of not more than 26 $2,000.00, or both. 04746'01 9 1 (e) An official prescription form, is guilty of a felony 2 punishable by imprisonment for not more than 1 year or a fine of 3 not more than $2,000.00, or both. 4 (f) A prescription form other than an official prescription 5 form, is guilty of a misdemeanor punishable by imprisonment for 6 not more than 1 year or a fine of not more than $1,000.00, or 7 both. 8 (3) The court may depart from the minimum term of imprison- 9 ment authorized under subsection(2)(a)(ii)(2)(A)(i), (ii), 10 (iii), or (iv) if the court finds on the record that there are 11 substantial and compelling reasons to do so. FOR A VIOLATION OF 12 SUBSECTION (2)(A)(i), (ii), (iii), OR (iv), IF THE STATUTORY MIN- 13 IMUM SENTENCE FOR THAT VIOLATION IS WITHIN THE SENTENCING RANGE 14 APPLICABLE TO THAT DEFENDANT UNDER SENTENCING GUIDELINES, OR 15 EXCEEDS THAT RANGE, THE COURT SHALL IMPOSE A SENTENCE WITHIN THE 16 SENTENCING RANGE ESTABLISHED UNDER SENTENCING GUIDELINES. In 17 addition, if any of the following apply, the court may depart 18 from the minimum term of imprisonment authorized under subsection 19(2)(a)(ii)(2)(A)(i), (ii), (iii), or (iv) if the individual 20 has not previously been convicted of a felony or an assaultive 21 crime and has not been convicted of another felony or assaultive 22 crime arising from the same transaction as the violation of this 23 section: 24 (a) The person is within the jurisdiction of the circuit 25 court under section 606 of the revised judicature act of 1961, 26 1961 PA 236, MCL 600.606, or section 4 of chapter XIIA of the 27 probate code of 1939, 1939 PA 288, MCL 712A.4. 04746'01 10 1 (b) The person is being sentenced under section 18(1)(n) of 2 chapter XIIA of the probate code of 1939, 1939 PA 288, 3 MCL 712A.18. 4 (4) As used in subsection (3), "assaultive crime" means a 5 violation of sections 81 to 90 of the Michigan penal code, 1931 6 PA 328, MCL 750.81 to 750.90. 04746'01 Final page. TVD