SENATE BILL No. 827

November 27, 2001, Introduced by Senators SHUGARS and HAMMERSTROM and referred

to the Committee on Health Policy.

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 7401, 7403, 7407, and 7521 (MCL 333.7401,

333.7403, 333.7407, and 333.7521), sections 7401 and 7403 as

amended by 2000 PA 314, section 7407 as amended by 1993 PA 80,

and section 7521 as amended by 2000 PA 302.

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 coun-

5 terfeit prescription form. A practitioner licensed by the admin-

6 istrator 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

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1 outside the scope of practice of the practitioner, licensee, or

2 applicant.

3 (2) A person who violates this section as to:

4 (a) A controlled substance classified in schedule 1 or 2

5 that is a narcotic drug or a drug described in section

6 7214(a)(iv) and:

7 (i) Which is in an amount of 650 grams or more of any mix-

8 ture containing that substance is guilty of a felony punishable

9 by imprisonment for life or any term of years but not less than

10 20 years.

11 (ii) Which is in an amount of 225 grams or more, but less

12 than 650 grams, of any mixture containing that substance is

13 guilty of a felony and shall be imprisoned for not less than 20

14 years nor more than 30 years.

15 (iii) Which is in an amount of 50 grams or more, but less

16 than 225 grams, of any mixture containing that substance is

17 guilty of a felony and shall be imprisoned for not less than 10

18 years nor more than 20 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 be

21 imprisoned for not less than 1 year nor more than 20 years, and

22 may be fined not more than $25,000.00, or placed on probation for

23 life.

24 (b) Either of the following:

25 (i) A substance described in section 7214(c)(ii) is guilty

26 of a felony punishable by imprisonment for not more than 20 years

27 or a fine of not more than $25,000.00, or both.

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1 (ii) Any other controlled substance classified in schedule

2 1, 2, or 3, except marihuana is guilty of a felony punishable by

3 imprisonment for not more than 7 years or a fine of not more than

4 $10,000.00, or both.

5 (c) A substance classified in schedule 4 is guilty of a

6 felony punishable by imprisonment for not more than 4 years or a

7 fine of not more than $2,000.00, or both.

8 (d) Marihuana or a mixture containing marihuana is guilty of

9 a felony punishable as follows:

10 (i) If the amount is 45 kilograms or more, or 200 plants or

11 more, by imprisonment for not more than 15 years or a fine of not

12 more than $10,000,000.00, or both.

13 (ii) If the amount is 5 kilograms or more but less than 45

14 kilograms, or 20 plants or more but fewer than 200 plants, by

15 imprisonment for not more than 7 years or a fine of not more than

16 $500,000.00, or both.

17 (iii) If the amount is less than 5 kilograms or fewer than

18 20 plants, by imprisonment for not more than 4 years or a fine of

19 not more than $20,000.00, or both.

20 (e) A substance classified in schedule 5 is guilty of a

21 felony punishable by imprisonment for not more than 2 years or a

22 fine of not more than $2,000.00, or both.

23 (f) An official prescription form or a counterfeit official

24 prescription form is guilty of a felony punishable by imprison-

25 ment for not more than 20 years or a fine of not more than

26 $25,000.00, or both.

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1 (F) (g) A prescription form or a counterfeit prescription

2 form other than an official prescription form or a counterfeit

3 official prescription form is guilty of a felony punishable by

4 imprisonment for not more than 7 years or a fine of not more than

5 $5,000.00, or both.

6 (3) A term of imprisonment imposed under subsection (2)(a)

7 or section 7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed

8 to run consecutively with any term of imprisonment imposed for

9 the commission of another felony. An individual subject to a

10 mandatory term of imprisonment under subsection (2)(a) or section

11 7403(2)(a)(i), (ii), (iii), or (iv) is not eligible for proba-

12 tion, suspension of that sentence, or parole during that manda-

13 tory term, except to the extent that those provisions permit pro-

14 bation for life, and shall not receive a reduction in that manda-

15 tory term of imprisonment by disciplinary credits or any other

16 type of sentence credit reduction.

17 (4) The court may depart from the minimum term of imprison-

18 ment authorized under subsection (2)(a)(ii), (iii), or (iv) if

19 the court finds on the record that there are substantial and com-

20 pelling reasons to do so. In addition, if any of the following

21 apply, the court may depart from the minimum term of imprisonment

22 authorized under subsection (2)(a)(ii), (iii), or (iv) if the

23 individual has not previously been convicted of a felony or an

24 assaultive crime and has not been convicted of another felony or

25 assaultive crime arising from the same transaction as the viola-

26 tion of this section:

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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:

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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 be punished as provided by law by imposing a sentence of

6 imprisonment for any term of years but not less than 25 years if

7 any of the following apply:

8 (A) The person is within the jurisdiction of the circuit

9 court under section 606 of the revised judicature act of 1961,

10 1961 PA 236, MCL 600.606, or section 4 of chapter XIIA of the

11 probate code of 1939, 1939 PA 288, MCL 712A.4.

12 (B) The person is being sentenced under section 18(1)(n) of

13 chapter XIIA of the probate code of 1939, 1939 PA 288,

14 MCL 712A.18.

15 (ii) Which is in an amount of 225 grams or more, but less

16 than 650 grams, of any mixture containing that substance is

17 guilty of a felony and shall be imprisoned for not less than 20

18 years nor more than 30 years.

19 (iii) Which is in an amount of 50 grams or more, but less

20 than 225 grams, of any mixture containing that substance is

21 guilty of a felony and shall be imprisoned for not less than 10

22 years nor more than 20 years.

23 (iv) Which is in an amount of 25 grams or more, but less

24 than 50 grams of any mixture containing that substance is guilty

25 of a felony and shall be imprisoned for not less than 1 year and

26 not more than 4 years, and may be fined not more than $25,000.00

27 or placed on probation for life.

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1 (v) Which is in an amount less than 25 grams of any mixture

2 containing that substance is guilty of a felony punishable by

3 imprisonment for not more than 4 years or a fine of not more than

4 $25,000.00, or both.

5 (b) Either of the following:

6 (i) A substance described in section 7214(c)(ii) is guilty

7 of a felony punishable by imprisonment for not more than 10 years

8 or a fine of not more than $15,000.00, or both.

9 (ii) A controlled substance classified in schedule 1, 2, 3,

10 or 4, except a controlled substance for which a penalty is pre-

11 scribed in subdivision (a), (b)(i), (c), or (d), or a controlled

12 substance analogue is guilty of a felony punishable by imprison-

13 ment for not more than 2 years or a fine of not more than

14 $2,000.00, or both.

15 (c) Lysergic acid diethylamide, peyote, mescaline, dimethyl-

16 tryptamine, psilocyn, psilocybin, or a controlled substance clas-

17 sified in schedule 5 , is guilty of a misdemeanor punishable by

18 imprisonment for not more than 1 year or a fine of not more than

19 $2,000.00, or both.

20 (d) Marihuana , is guilty of a misdemeanor punishable by

21 imprisonment for not more than 1 year or a fine of not more than

22 $2,000.00, or both.

23 (e) An official prescription form, is guilty of a felony

24 punishable by imprisonment for not more than 1 year or a fine of

25 not more than $2,000.00, or both.

26 (E) (f) A prescription form other than an official

27 prescription form, is guilty of a misdemeanor punishable by

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1 imprisonment for not more than 1 year or a fine of not more than

2 $1,000.00, or both.

3 (3) The court may depart from the minimum term of imprison-

4 ment authorized under subsection (2)(a)(ii), (iii), or (iv) if

5 the court finds on the record that there are substantial and com-

6 pelling reasons to do so. In addition, if any of the following

7 apply, the court may depart from the minimum term of imprisonment

8 authorized under subsection (2)(a)(ii), (iii), or (iv) if the

9 individual has not previously been convicted of a felony or an

10 assaultive crime and has not been convicted of another felony or

11 assaultive crime arising from the same transaction as the viola-

12 tion of this section:

13 (a) The person is within the jurisdiction of the circuit

14 court under section 606 of the revised judicature act of 1961,

15 1961 PA 236, MCL 600.606, or section 4 of chapter XIIA of the

16 probate code of 1939, 1939 PA 288, MCL 712A.4.

17 (b) The person is being sentenced under section 18(1)(n) of

18 chapter XIIA of the probate code of 1939, 1939 PA 288,

19 MCL 712A.18.

20 (4) As used in subsection (3), "assaultive crime" means a

21 violation of sections 81 to 90 of the Michigan penal code, 1931

22 PA 328, MCL 750.81 to 750.90.

23 Sec. 7407. (1) A person shall not knowingly or

24 intentionally:

25 (a) Distribute as a licensee a controlled substance classi-

26 fied in schedule 1 or 2, except pursuant to an order form as

27 required by section 7331.

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1 (b) Use in the course of the manufacture or distribution of

2 a controlled substance a license number which THAT is ficti-

3 tious, revoked, suspended, or issued to another person.

4 (c) Acquire or obtain possession of a controlled substance

5 by misrepresentation, fraud, forgery, deception, or subterfuge.

6 (d) Furnish false or fraudulent material information in, or

7 omit any material information from, an application, report,

8 official prescription form, or other document required to be

9 kept or filed under this article, or any record required to be

10 kept by this article.

11 (e) Make, distribute, or possess a punch, die, plate, stone,

12 or other thing designed to print, imprint, or reproduce the

13 trademark, trade name, or other identifying mark, imprint, or

14 device of another or any likeness of any of the foregoing upon a

15 drug or container or labeling thereof so as to render the drug a

16 counterfeit substance.

17 (f) Knowingly and intentionally give, permit, or obtain

18 access to information submitted to the department of commerce

19 under section 7334, except as otherwise authorized by this

20 article.

21 (F) (g) Possess counterfeit prescription forms, except as

22 an agent of government while engaged in the enforcement of this

23 part.

24 (2) A person shall not refuse or knowingly fail to make,

25 keep, or furnish any record, notification, order form, statement,

26 invoice, or other information required under this article.

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1 (3) A person who violates this section is guilty of a

2 felony, punishable by imprisonment for not more than 4 years, or

3 a fine of not more than $30,000.00, or both.

4 Sec. 7521. (1) The following property is subject to

5 forfeiture:

6 (a) A prescription form, official prescription form, con-

7 trolled substance, an imitation controlled substance, a con-

8 trolled substance analogue, an androgenic anabolic steroid, a

9 counterfeit androgenic anabolic steroid, or other drug that has

10 been manufactured, distributed, dispensed, used, possessed, or

11 acquired in violation of this article or section 17766a.

12 (b) A raw material, product, or equipment of any kind that

13 is used, or intended for use, in manufacturing, compounding, pro-

14 cessing, delivering, importing, or exporting a controlled sub-

15 stance, a controlled substance analogue, an androgenic anabolic

16 steroid, a counterfeit androgenic anabolic steroid, or other

17 drug in violation of this article or section 17766a; or a raw

18 material, product, or equipment of any kind that is intended for

19 use in manufacturing, compounding, processing, delivering,

20 importing, or exporting an imitation controlled substance in vio-

21 lation of section 7341.

22 (c) Property that is used, or intended for use, as a con-

23 tainer for property described in subdivision (a) or (b).

24 (d) Except as provided in subparagraphs (i) to (iv), a con-

25 veyance, including an aircraft, vehicle, or vessel used or

26 intended for use, to transport, or in any manner to facilitate

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1 the transportation, for the purpose of sale or receipt of

2 property described in subdivision (a) or (b):

3 (i) A conveyance used by a person as a common carrier in the

4 transaction of business as a common carrier is not subject to

5 forfeiture unless it appears that the owner or other person in

6 charge of the conveyance is a consenting party or privy to a vio-

7 lation of this article.

8 (ii) A conveyance is not subject to forfeiture by reason of

9 any act or omission established by the owner of that conveyance

10 to have been committed or omitted without the owner's knowledge

11 or consent.

12 (iii) A conveyance is not subject to forfeiture for a viola-

13 tion of section 7403(2)(c) or (d), section 7404, or

14 section 7341(4).

15 (iv) A forfeiture of a conveyance encumbered by a bona fide

16 security interest is subject to the interest of the secured party

17 who neither had knowledge of nor consented to the act or

18 omission.

19 (e) Books, records, and research products and materials,

20 including formulas, microfilm, tapes, and data used, or intended

21 for use, in violation of this article or section 17766a.

22 (f) Any thing of value that is furnished or intended to be

23 furnished in exchange for a controlled substance, an imitation

24 controlled substance, an androgenic anabolic steroid, a coun-

25 terfeit androgenic anabolic steroid, or other drug in violation

26 of this article or section 17766a that is traceable to an

27 exchange for a controlled substance, an imitation controlled

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1 substance, an androgenic anabolic steroid, a counterfeit

2 androgenic anabolic steroid, or other drug in violation of this

3 article or section 17766a, or that is used or intended to be used

4 to facilitate any violation of this article or section 17766a

5 including, but not limited to, money, negotiable instruments, or

6 securities. To the extent of the interest of an owner, a thing

7 of value is not subject to forfeiture under this subdivision by

8 reason of any act or omission that is established by the owner of

9 the item to have been committed or omitted without the owner's

10 knowledge or consent. Any money that is found in close proximity

11 to any property that is subject to forfeiture under subdivision

12 (a), (b), (c), (d), or (e) is presumed to be subject to forfei-

13 ture under this subdivision. This presumption may be rebutted by

14 clear and convincing evidence.

15 (g) Any other drug paraphernalia not described in subdivi-

16 sion (b) or (c).

17 (2) As used in this section:

18 (a) "Androgenic anabolic steroid" means that term as

19 defined in section 17766a.

20 (A) (b) "Counterfeit androgenic anabolic steroid" means

21 that term as defined in section 17766a.

22 (B) (c) "Imitation controlled substance" means that term

23 as defined in section 7341.

24 Enacting section 1. Sections 7401, 7403, 7407, and 7521 of

25 the public health code, 1978 PA 368, MCL 333.7401, 333.7403,

26 333.7407, and 333.7521, as amended by this amendatory act, take

27 effect upon the promulgation of the rules required under section

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1 7333a of the public health code, 1978 PA 368, and receipt by the

2 secretary of state of written notice from the director of the

3 department of consumer and industry services that the electronic

4 monitoring system required by section 7333a is operational. The

5 notice to the secretary of state shall include a statement that

6 the department of consumer and industry services is able to

7 receive data from at least 80% of those required to report under

8 section 7333a of the public health code, 1978 PA 368, and is able

9 to respond to requests for data from persons authorized to make

10 such requests and to review and utilize the data.

11 Enacting section 2. This amendatory act does not take

12 effect unless all of the following bills of the 91st Legislature

13 are enacted into law:

14 (a) House Bill No. 5260.

15 (b) House Bill No. 5261.

16 (c) House Bill No. 5262.

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