Offense Variable 15 (OV 15) measures aggravating factors in controlled substance offenses. OV 15 is scored only for controlled substance offenses (CS offenses). MCL 777.22(3). The variable contains quantity-based tiers for the most serious narcotics and separate provisions for lesser quantities and other controlled substances.
Scoring Table
| Points | Scoring Provision |
|---|---|
| 75 | The offense involved manufacture, creation, delivery, or possession with intent to deliver 1,000 grams or more of any mixture containing a controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in MCL 333.7214(a)(iv). MCL 777.45(1)(a). |
| 50 | The offense involved 450 to less than 1,000 grams of such controlled substances. MCL 777.45(1)(b). |
| 50 | The offense involved less than 450 grams of such controlled substances. MCL 777.45(1)(c). |
| 50 | The offense involved importation of such controlled substances with intent to deliver in this state. MCL 777.45(1)(d). [Effective March 19, 2014] |
| 25 | The offense involved the delivery or possession with intent to deliver a controlled substance (other than marijuana) to a minor younger than the offender, or to an incapacitated person. MCL 777.45(1)(e). |
| 10 | The offense involved manufacture, creation, delivery, or possession with intent to deliver a controlled substance in a minor's abode, home, or domicile. MCL 777.45(1)(g). |
| 5 | The offense involved delivery or possession with intent to deliver marijuana or any other controlled substance or counterfeit controlled substance, or possession of controlled substances under circumstances indicating trafficking. MCL 777.45(1)(h). |
| 0 | The offense was not an offense described in the categories above. MCL 777.45(1)(i). |
| Note: The statute was amended by 2002 PA 666 (effective March 1, 2003) and by 2013 PA 203 (effective March 19, 2014). Historical scoring provisions may apply to offenses occurring before those dates. | |
McGraw Rule — Strict Application to OV 15
OV 15 is a McGraw variable — the scoring must be specific to conduct relating to the sentencing offense. Where the defendant pled guilty to possession with intent to deliver less than 50 grams of cocaine (for a small amount found in his car) and the prosecution dismissed a higher charge based on 64 grams of cocaine found in a nearby motel room, it was error to score 50 points for the cocaine found in the motel room even though both offenses occurred simultaneously. OV 15 cannot be scored on the basis of dismissed drug offenses, even when the dismissed and sentencing offenses occurred at the same time. The conduct forming the basis of the sentencing offense must be separated from the conduct forming the basis of a dismissed offense, regardless of sequence.
The controlling rule: "Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable." Because OV 15 does not specifically authorize consideration of other offenses, it must be scored solely on the basis of the controlled substance involved in the sentencing offense.
Bases for the Five-Point Score
The Supreme Court identified two independent bases for the five-point score under MCL 777.45(1)(h): (1) the offense involved the delivery or possession with intent to deliver marijuana or any other controlled substance or counterfeit controlled substance; or (2) the offense involved possession of controlled substances having a value or under circumstances indicating trafficking. Five points were properly scored on the ground that there was evidence of delivery of drugs, satisfying the first alternative basis.
Improper Assessment
The trial court improperly assessed 50 points for OV 15 on the basis of intent to deliver where the evidence showed only one crushed pill found in the defendant's pocket, a history of substance abuse, no charge of delivery, and an absence of other indicia of possession with intent to deliver. The record evidence preponderated in favor of the conclusion that the defendant possessed the controlled substance for personal use, not delivery. Preponderance of the evidence is the standard; speculation about intent is insufficient.
Endnotes
- People v Gray, 297 Mich App 22 (2012)
- People v McGraw, 484 Mich 120 (2009)
- People v Jackson, 497 Mich 857 (2014)
- People v Davis, 503 Mich 918 (2018)
- People v Hardy, 494 Mich 430, 438 (2013)