Charged with possession with intent to deliver or delivery of drugs in Michigan? The difference between this and simple possession is intent, and that is where the case is fought
I am Mitchell Bisson, a Grand Rapids drug crimes lawyer. I have litigated for over 15 years. This page covers possession with intent to deliver and delivery charges under the Michigan Public Health Code: how the statute defines the offense, what the prosecutor has to prove, how the penalties are set, and the enhancements and forfeiture that can follow. I defend these charges in Kent County, and I do not promise outcomes.
The short answer. Michigan prohibits delivering a controlled substance, or possessing one with intent to deliver it. MCL 333.7401(1). Delivery means the actual, constructive or attempted transfer of a controlled substance from one person to another, and the definition does not mention payment. MCL 333.7105(1). The maximum sentence depends on the drug and, for some drugs, the weight of the mixture, and it ranges from 2 years to life. MCL 333.7401(2). Nothing here predicts how a case will come out.
Most of these cases begin with a traffic stop, a search warrant, a controlled buy or a search of a car or a home. The charge turns on three questions: whether the state can prove you possessed the substance, whether it can prove what the substance was and how much of it there was, and whether it can prove you meant to hand it to someone else. If it cannot prove the last of those, the remaining offense is simple possession under MCL 333.7403, which carries lower penalties.
Maximum penalties for delivery and possession with intent to deliver
| Substance | Maximum sentence | Maximum fine |
|---|---|---|
| Schedule 1 or 2 narcotic or cocaine, under 50 grams | 20 years | $25,000 |
| Schedule 1 or 2 narcotic or cocaine, 50 to under 450 grams | 20 years | $250,000 |
| Schedule 1 or 2 narcotic or cocaine, 450 to under 1,000 grams | 30 years | $500,000 |
| Schedule 1 or 2 narcotic or cocaine, 1,000 grams or more | Life or any term of years | $1,000,000 |
| Methamphetamine or MDMA (ecstasy) | 20 years | $25,000 |
| Other schedule 1, 2 or 3 drugs, not marijuana | 7 years | $10,000 |
| Schedule 4 | 4 years | $2,000 |
| Schedule 5 | 2 years | $2,000 |
Each of those is a felony. MCL 333.7401(2). Marijuana has its own tiers in subsection (2)(d), which this page does not cover. A prison term for the schedule 1 or 2 narcotic tiers may be ordered to run consecutively with the sentence for another felony. MCL 333.7401(3). The weight is measured by the mixture, so a small amount of a drug mixed with a large amount of filler is counted at the combined weight, and the lab report and the way the substance was weighed deserve a close read.
What the prosecutor has to prove
Possession with intent to deliver has three parts: that you possessed the controlled substance, that you knew you possessed a controlled substance, and that you intended to deliver it to someone else. For a schedule 1 or 2 narcotic or a cocaine-related substance, the weight of the mixture is also an element. The model jury instructions are M Crim JI 12.3 and 12.7.
Possession means actual physical control or the right to control, alone or with someone else. Knowing that the substance is there is not enough. Joint possession is possible, which is why a drug found in a shared car, a shared room or a shared house raises a real question of who had control.
Intent is a state of mind, so the prosecutor usually proves it by circumstance. The Michigan Supreme Court has said intent to deliver may be inferred from the quantity of the drug, the way it is packaged and the other circumstances of the arrest. People v. Wolfe, 440 Mich. 508, 524, 526 (1992); People v. Hardiman, 466 Mich. 417, 432 (2002). Scales, baggies, cash and phone messages are the usual evidence, and whether they show delivery or personal use is a fact question for the jury.
Delivery itself does not require a sale. A transfer to a friend, or an attempted transfer, fits the statute. MCL 333.7105(1). A case in which two people pooled money and one of them carried the drugs may turn on whether anything was ever transferred or whether they shared possession from the start.
Defenses and answers I look at
The stop and the search. Most of these cases rest on physical evidence, so I examine the stop, the warrant, the affidavit and the scope of the search before anything else. A suppression ruling can end the case, and a motion to challenge a warrant built on an informant is a separate issue that I treat on its own.
Who possessed the drugs. A person who shares a car, an apartment or a bag with others is not automatically in possession of everything in it. I look at where the drugs were found, who had access and what else connects the person to the item.
Personal use rather than intent to deliver. The amount, the packaging, the cash and the messages can have another explanation. If the state proves possession but not intent, the case belongs under the simple possession statute.
The informant or undercover officer. When a controlled buy supports the charge, the case depends on one person’s account, any recordings and how the money and the drugs were handled. The court may balance the need for disclosure of an informant’s identity against the privilege, and the Michigan Supreme Court has described an in camera hearing as the way to strike that balance. People v. Underwood, 447 Mich. 695, 705-706 (1994). Entrapment is a separate defense with its own test.
The lab and the weight. The tier depends on identification of the substance and its weight, so I ask for the lab report, the chain of custody and the testing method.
Search warrants, informants and entrapment
Many delivery cases begin with a warrant, and many warrants rest on a tip. An affidavit may rely on information from a named or unnamed person only if it contains affirmative allegations that the person spoke with personal knowledge and, for an unnamed person, either that the person is credible or that the information is reliable. MCL 780.653. If the affidavit contains a knowingly or recklessly false statement that was necessary to the finding of probable cause, the defendant is entitled to a hearing once a substantial preliminary showing is made. People v. Franklin, 500 Mich. 92 (2017). I compare the affidavit to the police reports line by line.
Entrapment has its own two-part test. A defendant is entrapped if the police engaged in impermissible conduct that would induce a law-abiding person in similar circumstances to commit the crime, or if the police conduct was so reprehensible that the court cannot tolerate it. Giving a person an opportunity to commit a crime is not enough. People v. Johnson, 466 Mich. 491 (2002). The defense depends on who first raised the idea of a sale, how many times the informant asked, and what the messages show, so I get every text and recording before deciding whether to raise it.
Phones, messages and what they can prove
Police often seize a phone and ask a judge for a warrant to search it. The messages are offered to show intent, and the state must still connect them to you and show what the words meant. Slang, a shared number, an old account and messages sent by someone else are all issues I examine. I tell clients to leave their phones and accounts as they are, to give me access to what they have, and not to message anyone about the case, because anything sent after an arrest can be read to the jury.
A delivery case with several people in it may also involve a co-defendant who is offered a deal in exchange for testimony. I look at what that witness was promised, what the witness said earlier and whether the physical evidence supports the account.
Enhancements and consequences beyond the base sentence
Delivering a schedule 1 or 2 narcotic or cocaine in an amount under 50 grams on or within 1,000 feet of school property or a library can be punished by a term of up to 3 times the usual maximum, and possessing it with intent to deliver in that zone by up to twice the usual maximum. Each carries a 2 year minimum, which the court may go below for substantial and compelling reasons. MCL 333.7410(2), (3), (5). Delivering, or possessing with intent to deliver, a narcotic, cocaine, methamphetamine or MDMA to a minor in or within 1,000 feet of a park can add up to 2 more years. MCL 333.7410a(1). A second or subsequent drug offense can be punished by up to twice the term and twice the fine. MCL 333.7413. The first-offense deferral for simple possession does not list delivery or possession with intent to deliver. MCL 333.7411(1).
The state can also seize and seek forfeiture of vehicles, money and equipment. Property worth $50,000 or less generally cannot be forfeited without a guilty plea or conviction, unless no one files a claim, and a claimant has 20 days after notice to file a written claim. MCL 333.7521a; MCL 333.7523. I track that 20 day period from the first meeting.
Ways a delivery case can end
A case can end in a dismissal after a motion is granted, a discharge or a reduction at the preliminary examination, a plea to a lesser offense or a verdict. At the preliminary examination, if the court finds no probable cause that an offense was committed or that the defendant committed it, it must discharge the defendant without prejudice or reduce the charge to a non-felony. MCR 6.110(F). A plea to a different offense than the one charged requires the prosecutor’s consent. MCR 6.301(D). I explain before you decide what each choice does to the sentence range, to later relief and to your record.
How I handle a delivery or possession with intent charge
- Protect your rights. I tell you not to talk to police or discuss the case by phone or text, because the case may rest on messages.
- Get the evidence. I request the reports, the warrant, the body camera and dash camera video, the lab report and any informant information.
- Challenge the search. I file motions where the stop, the warrant or the search was unlawful.
- Test intent and possession. I examine the quantity, the packaging, the money, the phone and who had access to the place.
- Deal with property. I calendar the forfeiture claim deadline for any seized vehicle, cash or phone.
- Prepare for the exam and trial. I cross-examine witnesses at the preliminary examination and prepare for trial in parallel with any negotiation.
- Explain the choices. I explain the sentence range, any enhancement and the options before you decide.
What I need from you
Bring the charging papers, your bond conditions, the police report if you have it, the property receipts and any forfeiture notice, and write down the date you received each one. Tell me where the drugs were found, who else had access, and whether police spoke to you. Do not delete messages and do not contact anyone who may be a witness.
Where your Kent County drug delivery case will be heard
I represent clients charged in Grand Rapids, Kentwood, Grandville, Wyoming and across Kent County. A felony begins in district court with an arraignment and, if the case continues, a preliminary examination. MCL 600.8311(c), (e). Michigan law sets the Kent County district courts by municipality. The 61st District Court serves the city of Grand Rapids, the 59th serves the cities of Grandville and Walker, the 62A serves the city of Wyoming and the 62B serves the city of Kentwood. MCL 600.8128a; MCL 600.8130(1)-(3). The 63rd District Court serves the rest of Kent County, which includes the cities of Rockford, Lowell, Cedar Springs and East Grand Rapids and the surrounding townships. MCL 600.8130(4). If the magistrate binds the case over, the felony is arraigned in the circuit court, which for Kent County is the 17th Judicial Circuit. MCL 766.13; MCL 600.8311(f); MCL 600.518.
Why people hire me for a drug delivery charge
You work directly with me, the lawyer handling your case. I tell you where the state’s case is strong and where it is weak, and what each choice means for your sentence exposure. I do not promise outcomes. I read the lab report and the warrant myself, and I prepare each hearing before we go to court.
Fees depend on the charge, whether the case goes to trial and whether there is a forfeiture matter. I explain my fee arrangement at the consultation, before you decide whether to hire me.
Questions I hear from people charged with delivering drugs in Michigan
What are the penalties for delivering or possessing drugs with intent to deliver in Michigan?
Under MCL 333.7401(2), delivering (a transfer, even without payment) or possessing with intent to deliver a schedule 1 or 2 narcotic or cocaine carries up to 20 years if under 450 grams, 30 years for 450 to under 1,000 grams, and life for 1,000 grams or more. Methamphetamine and MDMA (ecstasy) carry up to 20 years. Other schedule 1 to 3 drugs (not marijuana) carry up to 7 years, schedule 4 up to 4 years, and schedule 5 up to 2 years.
How does a Michigan prosecutor prove intent to deliver when drugs are found on me, such as the amount, baggies, scales, cash or phone messages?
The prosecutor must prove that the person possessed the drug, knew it was a controlled substance, and intended to deliver it to someone else. Intent is rarely shown directly, so Michigan courts allow it to be inferred from the quantity, the packaging, and other circumstances surrounding the arrest. Scales, cash, and messages are offered as those other circumstances, and the jury decides how much weight they carry.
What is the difference between possession with intent to deliver and simple possession in Michigan, and can the charge be reduced?
The difference is the intent to deliver. Simple possession requires only that the person knowingly possessed the substance, while possession with intent to deliver requires proof that the person meant to transfer it to someone else, and the penalties are higher. A reduction usually comes through a plea agreement the prosecutor consents to, a ruling at the preliminary examination, or a verdict on a lesser charge. The first-offense deferral for simple possession does not extend to delivery charges.
If I shared drugs with a friend or split the cost, is that delivery in Michigan?
It can be. Michigan defines delivery as the actual, constructive, or attempted transfer of a controlled substance from one person to another, and the definition does not mention a sale, payment, or profit. Possession can also be joint, so whether a handoff between people who pooled money was a transfer or shared possession from the start depends on the facts.
What happens if I am caught with drugs near a school or park in Michigan?
Michigan adds penalties. For adults 18 and older, possessing most controlled substances or marijuana on or within 1,000 feet of school property or a library can be punished by up to twice the usual penalty. Delivering a schedule 1 or 2 narcotic in that zone carries a minimum of 2 years, and so does possessing it with intent to deliver, though the court may go below the minimum for substantial and compelling reasons. Possession in or within 1,000 feet of a public or private park can add up to 2 more years.
Does a prior drug conviction increase the penalty in Michigan?
Yes. A second or subsequent drug offense can be punished by up to twice the prison term and twice the fine otherwise authorized. A prior counts if it was under Michigan’s drug article or under a federal or other state law relating to narcotics, marijuana, or depressant, stimulant or hallucinogenic drugs. A deferral and dismissal under the first-offender statute is not a conviction for this purpose.
Police used an informant or undercover officer to buy drugs from me. How does a controlled buy work, and how is it challenged in Michigan?
In a controlled buy, officers arrange for an informant or undercover officer to buy drugs from a suspect, and the purchase can support a delivery charge or a search warrant. It can be challenged in several ways: by asking the court to require disclosure of the informant’s identity, by attacking a search warrant affidavit that relied on the informant, and, where the facts fit, by raising entrapment. Each depends on how the buy was set up and what the police wrote down.
Can Michigan police take my car, cash or phone in a drug delivery case, and how do I get them back?
Police can seize property they have probable cause to believe was used or intended for use in a drug violation, and the Public Health Code lists vehicles, money, and equipment among the property subject to forfeiture. Keeping it permanently is a separate civil process. For property valued at $50,000 or less, forfeiture generally requires a guilty plea or conviction, unless no one files a claim, and a claimant has 20 days after receiving the notice to file a written claim.
Related Michigan pages
- Grand Rapids criminal defense lawyer
- Drug crimes
- Marijuana charges
- Felony defense
- OWVI and drugged driving
I represent people charged with drug delivery and possession with intent to deliver offenses in Kent County and West Michigan. Contact me 24/7 by phone or email. Your Rights, My Fight! Call for a free initial consultation.
Big-Firm Power. Street-Level Grit.
Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan.
This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.