Diluted Drug Is Affirmative Defense, Not Element of Crime
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 t