Diluted Drug Is Affirmative Defense, Not Element of Crime

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The Michigan Court of Appeals recently found that a defendant’s claim that the Ketamine he possessed was too diluted to satisfy a violation of the law was an affirmative defense, not an element of the crime that the prosecution must prove beyond a reasonable doubt.  In People v Hartuniewicz, Docket No. 298163 (September 29, 2011), the Court analyzed the basis for the exception found in the statute and concluded the defendant must establish the defense.

The Public Health Code proscribes the possession of Ketamine, a schedule III controlled substance.  However, the PHC excludes controlled substances if the controlled substances are in a proportion or concentration to vitiate the potential for abuse.  Hartuniewicz argued that the burden of establishing that a substance was in a proportion or concentration that did not vitiate the potential for abuse was on the prosecution.  Therefore, because no evidence was established at the trial that the substance found was in a concentration that did not vitiate its potential for abuse, he was entitled to a directed verdict on the charge of possession of ketamine. 

Judge Gleicher, writing for the unanimous panel, disagreed.  MCL 333.7216(1)(h) prohibits the possession of any quantity of ketamine.  MCL 333.7227 excludes “A substance that contains 1 or more controlled substances in a proportion or concentration to vitiate the potential for abuse….”  The Court concluded that an exemption or exclusion under the Controlled Substances Act created an affirmative defense which the defendant was required to establish after the prosecution had established a prima facie case of knowing possession.  “Just as our Supreme Court held in Pegenau [447 Mich 278, 292; 523 NW2d 325 (1994)] , and this Court held in Dean, [74 Mich App 19, 21-28; 253 NW2d 344 (1977)]‘once the people show a prima facie violation of the Controlled Substances Act,’ the defendant then has ‘the burden of going forward, i.e., of injecting some competent evidence of the exempt status, of the drug.’”  Because the defendant never submitted the sample for any quantitative analysis nor even asked the prosecution to perform any such examinations, the trier of fact was left with no evidence upon which to conclude that the substance was not diluted to the extent that its abusive quality was vitiated.  Therefore, the trial court did not err in refusing to grant the defendant’s motion for a directed verdict or in refusing to fashion an instruction for the jury to consider.

One would think, however, in a case with sufficient question as to the level of impurity of a substance, a defendant could succeed on such a theory provided he either tests the material himself or, at a minimum, requests the prosecution to complete a quantitative analysis of the drug.  It certainly is food for thought.

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