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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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Proof of only possession of a controlled substance within a school zone is not enough to prompt an enhanced statutory penalty under MCL 333.7410(3). In the consolidated cases of <em><a href="http://links.govdelivery.com/track?type=click&amp;enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTYxMDI4LjY1NjUwNjMxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE2MTAyOC42NTY1MDYzMSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MzU5MjA2JmVtYWlsaWQ9bWxhbmVAd25qLmNvbSZ1c2VyaWQ9bWxhbmVAd25qLmNvbSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&amp;&amp;&amp;105&amp;&amp;&amp;http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20161027_C330389_48_330389.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. English, No. 330389 and People v. Smith, No. 330390</a></em>, the Court of Appeals held that in order to apply the enhanced penalty, the prosecution must demonstrate that a defendant possessed drugs within a school zone with the intent to deliver them to a location within the school zone.

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During a drug raid at the home of defendant English, police discovered cocaine, marijuana, a handgun, and related drug paraphernalia. Similarly, a raid on the apartment and car of defendant Smith produced heroin, a handgun, and related drug paraphernalia. Defendant English’s property was within 1,000 feet of a high school, and, at the time of the raid, defendant Smith’s heroin was within 1,000 feet of a high school. Both defendants were charged with possessing with the intent to deliver less than 50 grams of a controlled substance within a school zone under MCL 333.7410(3). Section 7410(3) provides:

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An individual . . . who violates [statute regarding possession with intent to deliver a controlled substance] by possessing with intent to deliver to another person on or within 1,000 feet of school property or a library a controlled substance . . . shall be punished . . . by a term of imprisonment of not less than 2 years or more than twice that authorized by [statute regarding possession with intent to deliver a controlled substance].

In both cases, the trial court dismissed the charges, reasoning that the prosecution failed to demonstrate that the defendants intended to deliver drugs to a person on or within 1,000 feet of school property. The Court of Appeals affirmed the dismissals and the prosecutors appealed.

The Court of Appeals held that § 7410(3) is unambiguous; plain statutory meaning indicates that a defendant is subject to an enhanced penalty only if that defendant intended to deliver a controlled substance to a “person on or within 1,000 feet of school property or a library.” The Court of Appeals reasoned that the “last antecedent” rule of statutory interpretation applied. Under the last antecedent rule, a modifying or restrictive word or clause contained in the statute is confined solely to the immediately preceding clause or last antecedent, unless something in the statute requires a different interpretation. Thus, the Legislature intended the phrase “on or within 1,000 feet of school property” to modify the word “person” in the statute. Therefore, for the penalty in § 7410(3) to apply, an offender must specifically intend to deliver a controlled substance to a “person on or within 1,000 feet of school property or a library[.]”

Judge Murphy <a href="http://links.govdelivery.com/track?type=click&amp;enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTYxMDI4LjY1NjUwNjMxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE2MTAyOC42NTY1MDYzMSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MzU5MjA2JmVtYWlsaWQ9bWxhbmVAd25qLmNvbSZ1c2VyaWQ9bWxhbmVAd25qLmNvbSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&amp;&amp;&amp;106&amp;&amp;&amp;http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20161027_C330389_49_330389C.OPN.PDF" target="_blank" rel="noreferrer noopener">concurred,</a> but based his conclusion on the legislative history of § 7410(3), rather than the last antecedent rule. The concurrence emphasized that, pursuant to precedent, the last antecedent rule controls unless something in the statute requires a different interpretation or unless contrary intention appears. Further, legislative history surrounding § 7410(3) demonstrated a concern with the identity of a person to whom a drug delivery was intended to be made, not the location of the intended delivery. Therefore, the legislature intended that § 7410(3) apply where an offender possesses a controlled substance either inside or outside of a school zone with the intent to deliver the controlled substance within a school zone, and not where a controlled substance is possessed inside a school zone but with no intent to deliver the controlled substance within the school zone.

Judge O’Connell <a href="http://links.govdelivery.com/track?type=click&amp;enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTYxMDI4LjY1NjUwNjMxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE2MTAyOC42NTY1MDYzMSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MzU5MjA2JmVtYWlsaWQ9bWxhbmVAd25qLmNvbSZ1c2VyaWQ9bWxhbmVAd25qLmNvbSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&amp;&amp;&amp;107&amp;&amp;&amp;http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20161027_C330389_50_330389D.OPN.PDF" target="_blank" rel="noreferrer noopener">dissented</a>, writing that he would have reversed the trial court the enhanced penalty statute prohibits possessing drugs “within 1,000 feet of a school” regardless of the intended location of delivery. The dissent reasoned that § 7410(3), pursuant to statutory instruction in the Public Health Code of which it is a part, should be construed to be consistent with an analogous federal law, which enhances sentences for persons who possess with the intent to distribute a drug within a school zone. Under the federal law, the location of the drugs rather than the intended location of distribution is pertinent to the penalty. Accordingly, the dissent expressed that the phrase “within 1,000 feet of a school” in § 7410(3) describes the location where the defendant possesses the drugs, not the location of another person or where the defendant intends to deliver the drugs.

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Madelaine C. Lane

Labor and Employment

Location matters: mere possession of controlled substance within school zone, without intent to deliver the drugs in the zone, does not trigger enhanced statutory penalty

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Location matters: mere possession of controlled substance within school zone, without intent to deliver the drugs in the zone, does not trigger enhanced statutory penalty

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