13th August, 2010 - Posted by William J. Maze - No Comments
by Merna Noumeh
In People v. Derror, 475 Mich. 316, 319 (2006), the determinative issue was whether 11-carboxy-THC is a schedule I controlled substance. Id. at 324. The expert witness in the Derror case testified, “Carboxy THC is a metabolite created in the human body during the body’s biological process of converting marijuana into a water-soluble form that can be excreted more easily.” Id. at 321. In order for the court to reach this decision it had to “give effect to the intent of the legislature by applying the plain meaning of the statute.” Id at 324. under MCL 333.7212, marijuana is defined as “all parts of the plant cannabis sativa L. growing or not; the seed s thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” In an opinion given by Justice Corrigan, the Court noted that the word “derivative” has many “divergent” medical definitions. The court did not revert back to the legislative intent given to that term. Instead the court chose one among the many medical-dictionary definitions available. The majority claimed that the definition it chose “most closely effectuated the Legislature’s intent.” Id. at 328. In the end, the Court determined that metabolites of marijuana, ones that have no pharmacologic effects on the person, are marijuana for purposes of the “operating under the influence of drugs” crime. Id at 341. The majority explained that “the Public Health Code includes within the definition of marijuana every compound and derivative of the plant….” Id. at 325. Simply stated, this means that if a person had smoked marijuana 20 or 30 days prior to the arrest, he can be convicted of an operating while intoxicated offense. Therefore, the Carboxy THC in the blood stream is enough for a conviction.
Justice Michael Cavanagh, writing the dissent opinion, challenged the majority’s opinion on stating that the interpretation of the statute “disregards the statutory language chosen by the Legislature and results in an interpretation that violates the United States Constitution and the Michigan Constitution.” Id at 342. The dissent stated “the majority’s interpretation means that a person can no longer legally drive a car if scientific testing can detect any amount of 11-carboxy-THC in his system. This means that weeks, months, and even years after marijuana was ingested, and long after any risk of impairment has passed. . . . “ Id. The dissent also stated that the statute is “intended to be consistent with applicable federal and state law . . . to achieve [] consistency.” Id. It seemed like the majority in the Derror case was going off on a limb and deviating from the consistency standards provided by state and federal law, especially since there is no federal law that provides that 11-carboxy-THC is a schedule 1 controlled substance. Id.
A few weeks ago, the court in People v. Feezel 486 Mich. 184, (2010) overturned the Derror case. Justice Michael Cavanagh, who was the dissenting justice in the Derror case, wrote the majority’s opinion. The court reevaluated the statute as it pertains to marijuana and concluded that 11-carboxy-THC is not a schedule 1 controlled substance. Id. at 207. The court critiqued the majority in the Derror case and explained, “The majority’s interpretation ignored and was inconsistent with other relevant statutory provisions.” Id at 207. The court further determined that the majority in Derror failed to interpret the marijuana statute “in a manner consistent with federal law . . . and ignored the Legislature’s definition of “marijuana” and the Legislature’s list of schedule 1 controlled substances, which do not contain the term metabolite . . . . “ Id at 207-208. The court in Feezel explained, “Federal courts have stated that “the purpose of banning marijuana was to ban the euphoric effects produced by THC” and since 11-carboxy-THC has no known pharmacological effect, it cannot be considered a Schedule 1 drug. Id.
By ignoring the statutory provisions that classify a controlled substance, the majority in Derror failed to carry out the purpose and intent of the Legislature. However, this does not seem too far-fetched for the justice who wrote the opinion of the Derror case- Justice Maura Corrigan. Justice Corrigan wrote an article titled “Dice Loading” Rules of Statutory Interpretation, 59 N.Y.U. Ann. Surv. Am. L. 231, 232 (2003). In the article, Justice Corrigan stated, “Judges [] sometimes use preferential, or “dice-loading,” rules to “interpret” laws without regard to the plain meaning of the language in a statute. Id. Contradictory enough, this is exactly what justice Corrigan did in her opinion in the Derror case. She “dice-loaded” the marijuana statute by supplementing it with her opinion and an online medical dictionary.
If Justice Corrigan is so opposed to judges interpreting the legislative intent so liberally, and supplementing the legislative intent with their own person views, then the Derror case should have been decided differently. Justice Corrigan reasoned that this “dice-loading” mode of interpretation often permits judges to usurp legislative power.” Id. And that “the proper method of interpretation requires a judge to try to discern the fair meaning of the statutory text, free from dice-loading rules.” Id. Justice Corrigan’s views are nevertheless construed from formalistic perspective- adhere to the language of the statute. If Justice Corrigan truly believed in the fair meaning of the marijuana statute, then Justice Michael Cavanagh was correct in overturning the Derror case in Feezel and properly dissenting in Derror. Justice Corrigan further explained that the “use of preferential rules is one of a handful of practices that allows interpreters to disregard the text of a statute.” Id. Oddly enough, this is exactly what Justice Corrigan did in her opinion of the Derror case. So how are judges supposed to construe the legislative intent? One would believe that it’s by examining the legislative history behind the statute. This is what provides us with insight for enacting the statute in the first place. If judges disregard the legislative intent and its history, there would be no need for the separation of branches. If the legislative branch provides us with the laws and our courts are to interpret such laws, what is left for congress to do if judges such as Justice Corrigan fail to effectuate the legislator’s intent? Luckily enough there is the Doctrine of Stare Decisis- where courts may overrule precedents that were wrongfully decided. There were dissenting judges who noted the unfairness and inappropriateness in the Derror decision. After four years of unconstitutional interpretation of the marijuana statute, Justice Cavanagh was faced with the opportunity to overturn the Derror case, which finally gave real interpretation into the legislative intent without unduly “dice-loading” the meaning of the statute.
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Many thanks to Merna Noumeh for writing this article! Merna was our 2010 intern working at the Maze Legal Group PC from Cooley Law School. She proved to be an excellent intern and a wonderful attorney. She plans to return to her home state of Pennsylvania where she intends to practice law. She will be one hell of an attorney! — William Maze
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13th July, 2010 - Posted by William J. Maze - 1 Comment
Who the hell is that guy?
People charged with drunk driving are frequently tempted to hire a local lawyer. A lot of attorneys focus on this by suggesting that he/she is friends with the judge. Should you hire someone local or someone who really knows the science and legal arguments pertaining to DUI defense?
The “local lawyer” option is the old “I golf with the judge” mentality. So a client picks the guy who actually golfs with the judge, and what does that mean? Does the case get dismissed? Does the judge say not guilty at a bench trial? Does the prosecutor offer a non-alcohol? Does the cop run and hide?
The idea here is that the judge goes easier on someone who has hired his/her buddy-attorney. But that’s not true. The case and client stand on their own, and this assumes a guilty plea.
If the defense lawyer assumes a guilty plea from the start, the client may as well save the thousand bucks and go plead himself/herself guilty.
There’s a story shared by Glynn Delatte, a Louisiana DWI lawyer I know from the National College for DUI Defense, where Glynn tells clients to hire a couple of exotic dancers instead of an “escort” attorney. An escort attorney is one who walks into court with you, holds your hand, and pleads you guilty. The escort attorney does this day-after-day, repeatedly pleading clients guilty. When the prosecutor sees the escort attorney walk in, he prepares the plea form. When the judge sees the escort attorney walking into the courtroom, the judge says, “Hey, here comes another guilty plea. This will be easy.” Glynn says to save the thousand bucks, and go hire a couple of beautiful exotic dancers to go to court with you instead. Walk in proudly with a gorgeous woman on each arm. Walk in front of the prosecutor and sign the guilty plea. Take each woman’s arm back into yours and walk before the judge. Sit down between these woman while you wait for the judge to call your case. Go before the judge and plead guilty. Walk back to those exotic dancers and take their arms into yours and walk out of the courthouse. The exotic dancers will charge you less than the attorney, and you’ve accomplished the same thing that the escort attorney would have accomplished. But with one small twist: Both the prosecutor and the judge were impressed and wondered, “Who the hell was that guy?”
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2nd July, 2010 - Posted by William J. Maze - 2 Comments
In addition to our new web page at DUIMaze.com, the Maze Legal Group has also published a guide for Michigan driver’s license restoration and reinstatement for repeat drunk driving convictions. This new information is available at: www.Michigan-Drunk-Driving.com/Drivers_License_Restoration
–William Maze
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2nd July, 2010 - Posted by William J. Maze - 1 Comment
We have completed work on a new website. Our new website offers some new information and articles. If you’re looking for information regarding Michigan DUI laws, check out www.DUImaze.com
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28th January, 2010 - Posted by William J. Maze - 2 Comments
Thousands of dollars were wasted by police officials through ineffective enforcement of Michigan drunk driving laws over the 2009 holiday season. During the second week of January 2010, the Michigan Department of State Police revealed that only 300 drunk driving arrests were made during the recent holiday crackdown. Officers were required to put in an average of 25 road patrol hours for every drunk driving arrest while assigned to special DUI enforcement teams during peak hours, failing to detect many impaired motorists.
Officers from across the state worked 7,500 hours of increased enforcement over a 12-day period, resulting in 7,510 traffic stops. The DUI crackdown averaged a paltry one stop per each hour put in by police. After stopping motorists on suspicion of drunk driving, DUI enforcement officers discovered a whopping 96% of those drivers were sober. The crackdown cost taxpayers $300,000, catching only 300 suspected drunk drivers.
During the same time period, California law enforcement officers were nearly 10 times more effective, making over 2,600 drunk driving arrests in Los Angeles County alone. A statewide crackdown in Colorado netted 444 drunk drivers in half the number of days with a population less than half that of Michigan.
Michigan repeatedly performs poorly in the area of drunk driving enforcement because officers are inadequately trained and receive little encouragement to obtain proficiency. Across the country, most DUI task force officers employ training received through the National Highway and Traffic Safety Administration (NHTSA). The comprehensive three-day training course introduces officers to effective detection and testing of impaired motorists. Michigan officers rarely receive this training, and trained officers are free to disregard everything taught during the course.
Thomas Page, a nationally recognized prosecution expert and author of Medical-Legal Aspects of Abused Substances, states that “the detection and apprehension of impaired motorists require officers to focus on driving behaviors and to correctly administer the standardized field sobriety test battery.” Page indicates that these tests should not be viewed as optional or disregarded, and many officers are likely releasing impaired motorists if the officers are not following the NHTSA training.
Tony Corroto, a retired DUI police instructor turned defense expert, agrees and says that Michigan courts are “by far the worst in terms of enforcing standards” regarding DUI detection and enforcement. “The standardized field sobriety tests should be a requirement in Michigan,” according to Corroto. “By failing to implement the NHTSA training, officers may not be able to detect impaired drivers.”
For every person stopped on suspicion of being drunk over the holiday crackdown, 24 out of 25 turned out to be sober. Only 5% of the tickets issued by DUI enforcement officers went to drunk drivers. These incredible statistics reveal that Michigan police require better training in the detection and apprehension of drunk drivers.
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18th December, 2009 - Posted by William J. Maze - 2 Comments
A police officer requires “reasonable suspicion” to stop a vehicle and “probable cause” to place a person under arrest for DUI. In reality, however, officers stop and arrest drinking drivers on snap decisions. By using standardized forms and key phrases, however, officers can create compelling narratives to support the stop and arrest decision. These reports frequently appear cookie-cutter, but it passes muster in the courts.
Playboy Playmate Crystal McCahill's DUI was thrown out when the officer failed to conduct field sobriety testing.
A motorist may be stopped for any number of reasons. Officers are taught to stop vehicles for civil infractions and equipment violations while working DUI enforcement, even though those same officers are taught to watch for 24 driving behaviors affiliated with impaired driving. In other words, officers are taught to stop nearly everybody in the hopes of snaring a drinking driver. In a narrative report, the officer might write, “I saw the vehicle swerve out of its lane of traffic on several occasions and noticed at that time that the vehicle’s license plate lights were not operational.”
After the motorist is stopped, DUI task force officers are taught to describe numerous signs of consumption, such as the odor of intoxicants, bloodshot eyes, slurred speech, etc. In the narrative report, an officer will note all of the signs of consumption, making it appear obvious that the driver must be drunk. Upon closer scrutiny, however, these various signs of consumption only establish that the driver has consumed alcoholic beverages prior to driving. These signs of consumption are routinely recited to justify further investigation through field sobriety testing.
Once the officer has established that the motorist has consumed alcoholic beverages prior to driving, the courts have held that the officer may briefly detain the motorist for field sobriety testing. This is considered less intrusive than a full-blown arrest and a reasonable means to determine whether the amount of alcohol may have impaired the driver’s ability to operate the motor vehicle. Unfortunately, a person’s performance of field sobriety tests may be almost perfect, but officers using the same cookie-cutter descriptions can convincingly describe the motorist as drunk.
Despite these failings, the importance of field sobriety testing cannot be ignored. The purpose of these tests is to determine whether the officer has probable cause to make an arrest. The Fourth Amendment guarantees that no person can be arrested without probable cause:
”The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”
But what if the officer simply skips over the field sobriety testing process? Here is an interesting example of what can happen:
CHICAGO, Dec. 17 (UPI) — A judge in Cook County, Ill., said a Playboy model should not have been arrested by police after being stopped on suspicion of drunken driving.
The Chicago Sun-Times said Thursday that Crystal McCahill’s contention that her Jan. 7 arrest was unwarranted was supported by Judge Thomas V. Lyons. Her attorney said the Playboy model was happy with the ruling.
“She’s delighted,” said attorney Michael J. Monaco.
Monaco said despite police claims, his client did not voluntarily accompany a police officer to a police station in order to take sobriety tests. He insists Playboy’s Miss May 2009 believed she was under arrest at the time.
“If he’d done them on the scene and she’d failed them, it probably would have been a different result,” Monaco said of the tests.
Police maintain McCahill’s blood alcohol level was more than twice the legal limit for drivers in Illinois. The model was stopped by the officer after allegedly driving through a red light on Chicago’s north side, the Sun-Times said.
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30th November, 2009 - Posted by William J. Maze - 2 Comments
According to Webster’s Dictionary, “forensic” is defined as:
Etymology: Latin forensis public, forensic, from forum forum
1 : belonging to, used in, or suitable to courts of judicature or to public discussion and debate
2 : argumentative, rhetorical
3 : relating to or dealing with the application of scientific knowledge to legal problems
Generally speaking, forensic science is the application of a scientific field to facts in a legal case. Did the shooter have gun powder residue on his hands? Does the DNA match? Why did the bridge collapse? A jury might find a scientific expert’s assistance helpful in resolving criminal cases seeking to incarcerate an accused or civil cases where money is sought by an injured party.
But in DUI cases, the phrase “forensic scientist” is used flippantly by prosecutors to describe state employed technicians who are generally paid to deliver an opinion favorable to the government in exchange for continued employment.
The state’s technicians are run through quick programs designed to build their credentials. Michigan’s forensic scientists attend the Robert F. Borkenstein Course on Alcohol and Highway Safety at Indiana University. This week-long course is taught by recognized experts in the field, as well as prosecutors and police officers. One can only wonder at the marvels taught by prosecutors and police officers to the freshly minted “forensic scientist.”
The fact that this course has been closed to defense lawyers for several years, despite public funding, has not gone unnoticed. Apparently the information shared with the state-sponsored gunslingers is far too secretive to disclose to the public at large.
Despite the government’s best efforts, information from the Borkenstein Course has been obtained by defense lawyers. For whatever that training is worth, Michigan’s forensic scientists frequently disagree with the experts who teach at the Borkenstein Course, particularly if that testimony helps the prosecution in a DUI case. When confronted with materials presented at the course, our state’s experts refuse to recognize their trainers as experts or blatantly disagree with the published research. In other words, the rhetoric is more important than the pursuit of the truth.
Rhetoric should never take a back seat to science when it comes to forensic science. I once had the pleasure of cross-examining Dr. Ljubisa J. Dragovic, the Oakland County Medical Examiner, in a DUI case. While I expected the worst, Dr. Dragovic admitted almost every flaw in the prosecutor’s case that I was able to expose. There was no hesitancy or reluctance to provide frank and honest answers disclosing the underlying methodology or flaws in the prosecutor’s theory of the case. And the Borkenstein Course was mysteriously absent from Dr. Dragovic’s resume.
But the Michigan State Police’s toxicology unit, which provides testimony in most DUI cases across the state, is under serious pressure to produce results. As one commentator noted recently:
“According to a recent study conducted under the auspices of the National Academy of Sciences, ‘[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.’ National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) . . . . And ‘[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.’ Id., at S–17. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.
And that commentator was Justice Antonin Scalia writing for the majority of the United States Supreme Court in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 2529, 174 L. Ed. 2d 314 (2009).
There is a conflict in the term “forensic science.” It is an oxymoron akin to “military intelligence.” If science is the pursuit of the objective truth and knowledge, then forensic science is an argumentative, rhetorical application of science. Another oxymoron comes to mind: it is supposed to be an “unbiased opinion,” but that is not what the Michigan State Police are aiming to achieve down in Indiana.
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17th November, 2009 - Posted by William J. Maze - No Comments
I have previously posted on the issue of whether a DUI resulting in death should constitute a second degree murder charge as opposed to “operating while intoxicated causing death,” which is the statute passed by lawmakers that is specific to the actual crime. (See “Is Drunk Driving Murder?“) In a tragic story out of Detroit, a 10 year old boy was killed in a horrible car crash the other day. Details remain scant, and it could be merely a typographic error, but the Detroit New reported on November 16, 2009 the following:
Nicholas Gamez, 20, was charged Sunday with second-degree murder, manslaughter with a motor vehicle, negligent homicide, operating while impaired causing death and operating while impaired causing serious injury, the Wayne County Prosecutor’s Office said today.
The “impaired” (as opposed to “intoxicated”) charges were confirmed by Mlive.com, and if this is accurate, it is a significant development in the case.
Typically, if prosecutors charge a person with “impaired” driving, this means that the person was driving with a legal blood alcohol level lower than the .08 limit. This is controversial, and I posted on this topic only a few days ago. (See “Can a person be charged with impaired driving at .07 under Michigan law?”) The fact that the accused is under the legal age to drink alcohol further complicates this issue, since a minor can be charged with a zero tolerance offense if the blood or breath alcohol content is greater than .02. It would be implausible to believe that a .02 or .03 BAC could impair driving abilities.
Horrible car accidents occur every day, and the vast majority of these fatal car crashes do not involve a drunk driver. A sober motorist is 28 times more likely to be killed by another completely sober driver than a drunk driver. Driving is dangerous, and these statistics underscore why it is so important to always drive carefully and cautiously.
The prosecutor’s decision to charge the accused with second degree murder charge is very serious, and this young man faces up to life in prison. Although details have not been released, it would extremely controversial for the prosecutor’s office to file murder charges without outrageous aggravating circumstances. Despite the tragedy of this story, nothing outrageous has been reported yet.
Michigan DUI lawyers have witnessed a trend since prosecutors received a green light from the courts permitting murder charges to be filed in OWI causing death cases. The trend is that prosecutors almost always overcharge the offense. They do this for a number of reasons. It makes it appear that the prosecutors are taking the matter seriously, it makes it appear that the prosecutors are tough on crime, it makes it appear that the prosecutors are tackling DUI, and it gives them a powerful bargaining chip when dealing with the accused.
And none of the prosecutor’s motives are valid if the facts do not support murder charges.
The Michigan Rules of Professional Conduct have special rules for prosecutors, given their special status representing all of the people of the state including the accused. Rule 3.8 states in part that a prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”
Unless the facts support it–facts that have not been disclosed to the public–then the prosecutor’s decision to charge the accused with second degree murder in this case could easily test the limits of the special duties imposed upon a prosecutor.
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17th November, 2009 - Posted by William J. Maze - No Comments
Drivin’ that train, High on cocaine
-The Grateful Dead
Driving under the influence of drugs sounds really bad. Images of teenagers driving like lunatics in Reefer Madness dovetail with the traditional images of drunk drivers sauced up and toting bottles enclosed in brown paper bags. We have been indoctrinated with these images through propaganda designed to underscore a message of fear, but these images are far from the truth. The typical “drugged driver” is a normal everyday person accused of a very serious crime, and the evidence used to prosecute that person is largely based upon a police officer’s opinion.
Michigan has two primary laws that ban driving under the influence of drugs, and one is relatively new. The older of these two laws makes sense but can be manipulated in ways that were never intended, and the newer law simply makes no sense but makes a prosecutor’s job easy.
The older law states that it is unlawful to operate a motor vehicle while intoxicated. It is the same law used to prosecute drivers who are intoxicated by alcohol. It says that it is unlawful to drive while intoxicated, and the definition of what it means to be intoxicated states that “[t]he person is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.” MCL 257.625(1)(a). If a person drinks a few beers, smokes a couple of joints, and does a couple of lines before driving, that driver can be prosecuted if the motorist is “under the influence” of those substances. Pretty simple, at least in theory.
The new law prohibits driving with the presence of “any amount” of certain substances. MCL 257.625(8). The prohibited substances under this law include all Schedule 1 drugs, which are highly addictive drugs with no medical value, as well as cocaine and marijuana. Cocaine was tacked on because it is a favored law enforcement target, and marijuana was included even though Michigan now recognizes its medical properties. The problem with this law is that a chemical test might reveal trace elements of prohibited drugs from days or even months prior to driving. With increasingly sensitive ways of detecting drug exposure, it is possible to detect marijuana in a person’s body even when it has not been smoked. This is incredibly stupid.
Law enforcement officers, lawyers and judges frequently confuse the two laws. To clarify the difference: if a doctor can prescribe it, and it is neither cocaine nor marijuana, the charge cannot be an “any amount” violation. On the other hand, if the charge involves one of these prohibited substances, it could qualify under both laws depending upon the facts of the case.
To prove that a motorist is “under the influence” of a controlled substance, the prosecutor must prove that the person’s “ability to drive was substantially and materially affected by consumption of” the controlled substance. On the other hand, an “any amount” charge only requires evidence of driving and a test revealing the presence of the proscribed drug. The prosecutor does not need to prove any pharmacological effect at all. People v Derror, 475 Mich 316 (2006). In other words, the driver is drunk even though no evidence attempts to prove that the motorist was drunk or even impaired by the presence of the substance.
The draconian nature of the “any amount” law aside, the older law is subject to abuse because that statute prohibits driving under the influence of a broad category of drugs defined as a “controlled substance.” In the hands of creative police officers and overly aggressive prosecutors, this common sense law has been subjected to torturous manipulation. It also has some notable holes in it.
A “controlled substance” is defined by the Public Health Code. The Legislature and administrative boards have carefully categorized various substances into drug schedules. It is a bureaucratic fantasy in the real world of medicine. Unfortunately, this laundry list of substances was adopted wholesale into the drunk driving laws without regard to the impairing effect of the drugs.
In the hands of police and prosecutors, the broadly defined list of controlled substances is subject to abuse. Technically, if an officer describes diminished driving abilities, a motorist can be charged with driving under the influence of Viagra, Tegretol, or Xyrem. You are probably familiar with Viagra, but Tegretol is an anti-seizure medication used to treat epilepsy, and Xyrem is a drug used to treat narcolepsy. Quite frankly, drivers prescribed with either Tegretol or Xyrem should not be driving if they are NOT under the influence of those drugs.
BE ALERT: Notorious drug users frequently disguise themselves as neighbors, co-workers, parents and grandparents.
Real world difficulties arise when police officers charge motorists with driving under the influence of Xanax, a benzodiazepine, or Vicodin, a narcotic. These drugs can potentially result in euphoria and diminished driving abilities, especially if they are abused and combined with alcohol. These are also popular drugs that are frequently abused. Ritalin, a psychostimulant drug used for treating attention-deficit hyperactivity disorder, can also be abused, but the only published study regarding Ritalin and driving performance shows a remarkable improvement in driving performance for those suffering from attention-deficit disorder.
Even though some drugs can be abused, normal everyday people take drugs like Xanax, Vicodin and Ritalin and drive to work each day. Some of these notorious drug users might even have a drink after work. Cancer patients may be prescribed pain relievers at dosage levels that would kill a normal person, and yet these folks are merely managing pain and drive safely. So how can we decide who is “intoxicated” and “under the influence” of a controlled substance? Ay, there’s the rub.
In the hands of a creative police officer, stone-cold sober motorists can be described as falling down drunk. Hokey field sobriety tests are failure designed tests that cannot fairly measure intoxication, but aggressive prosecutors will sermonize on this flawed junk science. And unlike the .08 law that exists for alcohol, lawmakers have been unsuccessful at creating similar legal limits for drugs because the pharmacological effect of a drug varies so dramatically from one person to the next.
Finally, there are some notable holes under Michigan’s drunk driving statute. Many substances can impair driving abilities but are not classified as “controlled substances” under the public health code. For instance, “huffing” inhalants can seriously impair driving abilities, but these abused substances are never prescribed by a doctor or pharmacist so they are not defined as a “controlled substance.” This also applies to any trendy new drug that has not been formally criminalized. And then there is Soma (carisoprodol), a powerful muscle relaxer that has gained the attention of the National Highway and Traffic Safety Administration. Carisoprodol is not a controlled substance, but once ingested, it metabolizes into meprobamate, which is a controlled substance. Even under the influence of a large dose of Soma, the driver is arguably not operating a vehicle under the influence of a controlled substance but is instead intoxicated as a result of a naturally occurring bodily process. The driver can honestly say that he or she did not take a controlled substance, blaming it on the liver where carisoprodol is turned into meprobamate. When we start to outlaw bodily processes that create an impairing effect, we have opened up a whole new can of worms.
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13th November, 2009 - Posted by William J. Maze - 1 Comment
Under Michigan law, a motorist can be charged with Operating While Intoxicated (OWI) if the driver’s “ability to drive was substantially and materially affected by consumption of intoxicating liquor.” A driver can also be charged with OWI if chemical tests reveal a bodily alcohol content of .08 or more. Prior to 2004, the legal blood alcohol level was .10, but it was reduced under the new federally mandated .08 legislation.
Lower Limit Tougher Law ... or whatever the cops say it is?
Meanwhile, a motorist can be charged with the lesser included offense of Operating While Visibly Impaired (OWVI) if the driver’s “ability to drive was so weakened or reduced by consumption of intoxicating liquor that [the motorist] drove with less ability than would an ordinary, careful and prudent driver. Such weakening or reduction of ability to drive must be visible to an ordinary, observant person.”
People v Lambert, 395 Mich 296 (1975).
For many years, if a motorist was over .07 but under .10, the driver was presumed to be impaired. This presumption was in addition to the element that the motorist “drove with less ability.” The prosecutor could introduce evidence of a breath or blood test of .08 or .09, and the judge would instruct the jury that the law presumed the driver was impaired. The accused could introduce other evidence to rebut the presumption, and the jury would consider that evidence in light of the legal instruction.
When Michigan lowered the legal alcohol limit from .10 to .08, the Legislature removed the statutory presumptions for OWVI. The law regarding OWVI has reverted back to its original form, and there is no presumption that a motorist is impaired at any particular level.
Many police and prosecutors immediately announced that a person could be charged with impaired driving at any level under the newly revised laws. This construction is true but misleading. The more aggressive jurisdictions construed this to mean that a driver was impaired at any measurable alcohol level, which is absurd.
Without statutory presumptions, a seasoned drinker could be merely impaired at .18, far in excess of the legal .08 limit. Without a breath or blood test, another motorist could be found guilty of OWVI if there is enough evidence to prove that the driver consumed alcohol and drove with less ability than that of careful and prudent driver as a result of drinking alcoholic beverages.
But could an inexperienced drinker who drives poorly be convicted of OWVI if a breath or blood test reveals a legal blood alcohol level? Conceivably, yes, but the blood test is not the relevant evidence used to prosecute that driver. The central issue in such as case is whether the inexperienced drinker drove poorly because of the alcohol.
And this goes to the heart of the .08 debate.
When the federal government decided to reduce the legal limit nationally to .08, they accomplished this by threatening to remove highway funds from the states. The federal government did this because there is a slight increase in the number of accidents above .05 that increases past .08 and above, even though the vast majority of drunk driving accidents statistically occur at .17 or higher.
Historically, drunk driving prosecutions did not involve a breath or blood tests, and the issue for the jury was simply whether the evidence proved that the driver was drunk. Because alcohol is like any other drug and affects people differently, the widespread introduction of blood and breath testing raised an interesting question: At what level should we prohibit driving, even if the driver does not exhibit clear signs of intoxication?
Lawmakers, with input from the American Medical Association, agreed that .15 should be used as a sort of cap. Thus, a person could be convicted of drunk driving if they were drunk or it was proven that the motorist was over .15 BAC. Over the years, the .15 legal limit was reduced by many states to .10 because it was too difficult for prosecutors to win cases when they had to prove that the driver was actually intoxicated.
It has been widely acknowledged that most people exhibit few if any signs of intoxication at .08. According to one police manual, only 1 out of 5 drivers exhibit any sign of intoxication at .08, so police are required to put suspected motorists through a complicated series of difficult tasks. And this is being done because the federal government was concerned over the slight increase in accident rates that statistically appears over .05 and increasing past .08; it does nothing to address the real problem of drunk driving accidents that most frequently occur at .17 or greater.
In light of the history of these legal presumptions, going back to our inexperienced drinker who is charged below the legal limit, what do the numerical results of a legal blood alcohol result mean in terms of prosecuting the motorist? What if the driver is charged at .07 or even .04? On the one hand, prosecutors are tempted to argue that .07 is close to .08, and jurors find this very appealing. As any five year old child can explain, 8 comes right after 7, but that does not mean that the driver was drunk or impaired. And if the inexperienced drinker’s BAC is measured at .04, which is clearly half the legal limit, it is equally irrelevant to the prosecution.
Legal blood alcohol levels could be introduced as relevant evidence if the prosecution can explain what these readings mean through expert testimony, but the expert would be subject to cross-examination and have to answer difficult questions. More typically, these results will be introduced in some fashion by the defense as exculpatory evidence. Anyone can be charged with drunk driving, and several notable stories crop up each year where police officers arrest drivers who have no alcohol or drugs in their system. For the stone-cold sober motorist, those chemical tests tend to prove innocence, as does a chemical test reflecting a legal blood alcohol level for the responsible drinker.
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