zero tolerance drug

There are four ways for a prosecutor in Michigan to prove that you were drunk driving or “OWI” (operating while intoxicated).  Two of them involve alcohol (OUIL/UBAL) and two of them involve drugs (OUID/OWPD).

To show that a person was OWI due to OWPD (operating with presence of drugs), a prosecutor must only show that certain “schedule 1” drugs were present, in any amount, in the driver’s blood.  Because the prosecutor need not show that these drugs caused intoxication or impairment, these schedule 1 drugs are thought of as “zero tolerance” drugs.

Schedule 1 includes “marijuana,” which is defined by Michigan law as:

(3) “Marihuana” means all parts of the plant Canabis sativa L., growing or not; the seeds 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. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted there from, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.

Of course when determining if someone has used marijuana before driving the police don’t look for the marijuana itself, but instead, have the blood inspected for evidence that marijuana has been used.  The active ingredient in marijuana is THC.  As THC breaks down inside the body, 11-carboxy-THC is produced.

In the Michigan case of People v. Derror, the defendant was found guilty of OWI causing death based only on the presence of 11-carboxy-THC. The issue in this case was whether or not 11-carboxy-THC was a “derivative” of marijuana. The Derror case involved two companion cases, and in both cases, blood tests only revealed the presence of the metabolite 11-carboxy-THC. The active and impairing THC was not found in either of the driver’s blood samples.

The Derror court ruled that 11-carboxy-THC was actually a derivative rather than just a metabolite of marijuana, and based this decision in part on expert testimony by a state witness and in part on an online medical dictionary, which indicated that a derivative is that “which is produced by modification of something preexisting.”  The court further found that one may be convicted of drunken driving causing death based only on the presence of this derivative.

The Michigan Supreme Court, in People v. Feezel, No. 138031 (June 9, 2010) has ruled that 11-carboxy-THC is not a derivative of marijuana, and in so doing, has completely overruled People v. Derror,  475 Mich 316, 715 NW2d 822 (2006).

Feezel looked at several factors including:

1. Strict Interpretation – The fact that schedule 1 does include the word “derivative” but does not include the word “metabolite.”
2. Effect on Existing Law – Other criminal statutes do specifically include the word “metabolite,” and legislatures are presumed to know and to have considered the effect on all existing laws when enacting new legislation.
3. Federal Law – The Michigan definition of marijuana is identical to that contained in federal statutes, and that by failing to construe the applicable portions of the Public Health Code to achieve consistency with federal law, and by failing to examine the statute in light of other relevant statutory provisions, the Derror majority failed to effectuate the Legislature’s intent.
4. The Michigan Medical Marihuana Act – Under the majority’s interpretation of the statute in Derror, however, individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired. Indeed, in this case, experts testified that, on average, the metabolite could remain in a person’s blood for 18 hours and in a person’s urine for up to 4 weeks.

Feezel has reversed Derror, and in doing so, has removed 11-carboxy-THC from the list of “drugs” that can be considered zero tolerance.  In some small way therefore Michigan’s zero tolerance law has become slightly more tolerant to marijuana.  Thus, while still a zero tolerance drug; this Feezel decision also has the effect of making the defense of those accused of OWI based on marijuana more feasible than previously thought.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

DUI Breath Testing

Breath test results are the most common forms of evidence used to convict Michigan drivers accused of drunk driving.  There is an expectation and a trust that because these breath testing machines, in Michigan called “DataMasters,” are properly maintained by the police.  Other states have shown that this trust is often misplaced.

This time the culprit is the District of Columbia, where D.C. Attorney General Peter Nickles said the breath testing machines were improperly adjusted by city police.

Mary Pat Flaherty, Washington Post Staff Writer (Thursday, June 10, 2010) has indicated that “nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.”

Furthermore, D.C. Attorney General Peter Nickles said that the jailed defendants generally served at least five days.

The report indicates that all machines tested where wrong, usually by 20%.  A lawsuit has been filed by those wrongfully convicted.

But the District isn’t the only state to have such problems.  Here is a list of prior articles dealing with the same issues:

• DUI Dismissals Result From Faulty Breathalyzers
• Thousands DUI Cases Possibly Dismissed Over Invalid Breath Test Certificates
• Radio Frequency Can Cause Falsely High Breath Test Results
• Thousands of Breath Tests Improperly Admitted in Michigan DUI Trials

If you’ve been arrested for DUI in Michigan, and believe the test results are flawed, then you should seek out a top DUI lawyer to assist you with your case.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Texting Causing Death

On July 1, 2010, Michigan will have a new law on the books that makes it unlawful to text while driving.  The actual verbiage of this new law follows this article, but the law essentially states that a person “shall not read, manually type, or send a text message while operating a motor vehicle that is moving on a highway or street in this state.”

This new “texting while driving” offense is considered a moving violation and a “primary offense” meaning if the police see you doing this, they can stop you on this basis alone.

Another soon to happen change in the more traditional Michigan drunk driving law relates to OWI Causing Death.  Here’s how this one works:  Before October 31, 2010, if person, while operating a motor vehicle in Michigan while intoxicated (OWI) causes the death of another, he or she can be charged with the offense of OWI Causing Death or Vehicular Manslaughter.  These offenses are both very serious felonies punishable by up to 15 years in prison.

However, if a Michigan driver is not reckless, negligent or perhaps intoxicated enough to be charged or convicted of either felony charge, then her or she can still be charged with negligent homicide.  This is a much less serious misdemeanor caring a much less significant period of jail time

As part of the change in the Michigan OWI Super Drunk Driving statute taking effect on October 31, 2010, a new statute makes it a misdemeanor to cause the death of another while committing a “moving violation.” [i] Additionally, the criminal statutes for Negligent Homicide while operating a motor vehicle will be repealed.

This new “moving violation causing death” statute is much broader than the old “negligent homicide” statute, and it also removes completely the issue of negligence, replacing it with a strict liability crime, strict liability meaning all that is necessary to prove it is that the death occurred “while committing” a moving violation, whether negligent or not.

Because of these two changes in Michigan’s law, effective October 31, 2010, anyone who causes a death of another while texting can be found guilty of this new high misdemeanor crime, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $2,000.00, or by both such fine and imprisonment.

Here is the new texting law that has been passed and will be effective in July:

257.602b.added Reading, typing, or sending text message on wireless 2-way communication device prohibited; exceptions; violation as civil infraction; fine; local ordinances superseded.

Sec. 602b.

(1) Except as otherwise provided in this section, a person shall not read, manually type, or send a text message on a wireless 2-way communication device that is located in the person’s hand or in the person’s lap, including a wireless telephone used in cellular telephone service or personal communication service, while operating a motor vehicle that is moving on a highway or street in this state. As used in this subsection, a wireless 2-way communication device does not include a global positioning or navigation system that is affixed to the motor vehicle.

(2) Subsection (1) does not apply to an individual who is using a device described in subsection (1) to do any of the following:

(a) Report a traffic accident, medical emergency, or serious road hazard.

(b) Report a situation in which the person believes his or her personal safety is in jeopardy.

(c) Report or avert the perpetration or potential perpetration of a criminal act against the individual or another person.

(d) Carry out official duties as a police officer, law enforcement official, member of a paid or volunteer fire department, or operator of an emergency vehicle.

(3) An individual who violates this section is responsible for a civil infraction and shall be ordered to pay a civil fine as follows:

(a) For a first violation, $100.00.

(b) For a second or subsequent violation, $200.00.

(4) This section supersedes all local ordinances regulating the use of a communications device while operating a motor vehicle in motion on a highway or street, except that a unit of local government may adopt an ordinance or enforce an existing ordinance substantially corresponding to this section.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Alcohol Sensing Steering Wheel?

Always a glutton for media attention, U.S. Senator Charles “Chuck” Ellis Schumer has involved himself in such controversial and well-covered issues as immigration reform and universal voter registration.

Schumer’s latest quest for the media lime-light includes his push for legislation “to boost alcohol-detection technology in cars, which he said could greatly reduce drunk driving — especially for repeat offenders.” [i]

According to Schumer: “Technology like this is potentially breathtaking in terms of saving lives.”[ii]

The Staten Island Real-Time News reports: “The bill, aimed at fostering research and development, looks to create a partnership between anti-drunken-driving advocates, including MADD, and car manufacturers to design devices to keep intoxicated people from getting behind the wheel.[iii]”

According to Patentstorm.us there are many such anti-drunk driving technologies in the works.  For example:

Other technologies, aside from the breath analyzers, have been combined with automobile interlock systems to prevent an intoxicated person from starting a vehicle.

For example, U.S. Pat. No. 5,743,349, issued to Steinberg in 1998, includes a non-invasive reader of a person’s blood alcohol concentration in combination with ignition interlock circuitry to prevent operation of a vehicle by an intoxicated person.

The non-invasive BAC reader utilizes optical spectroscopic electromagnetic radiation to detect alcohol levels in blood. The sensor is preferably dash mounted and requires the driver to insert his or her finger into the device, and depending upon the result of the test, the operator may be instructed to wait or to find a non-impaired operator.

Similarly, U.S. Pat. No. 6,229,908, issued to Edmonds, III et al. in May 2001, discloses a vehicle interlock device that includes both a blood alcohol detector that measures intensities of wavelengths of light emerging from a finger inserted into the sensor device, as well as a fingerprint scanner, which compares the fingerprint of the user to a pre-stored image of the fingerprint of the principal driver of the vehicle. Although acceptable for testing a driver at the time of starting the vehicle, the ’349 patent is not applicable to continuous BAC testing after engine startup.

Although these aforementioned devices are a good start towards keeping impaired drivers off the road, they fail in several regards. Whether the BAC sensor is a breath analyzer or an optical spectroscopic reader, they all require some positive action by the driver, thereby limiting it to discontinuous operation, once at engine startup, and then randomly during operation of the vehicle.

A technology that offers an alternative approach to non-invasive detection of BAC, as well as continuous BAC testing, is based upon the knowledge that alcohol is eliminated from the body by two mechanisms: metabolism and excretion. Metabolism accounts for greater than 90% of ingested alcohol and occurs principally in the liver. The remaining 10% of ingested alcohol is excreted, unchanged, wherever water is removed from the body, including breath, urine, perspiration, and saliva. The excreted alcohol is significant because it can be measured and correlated to a person’s BAC.

U.S. Pat. No. 5,944,661, issued to Swette et al. in 1999, discloses an electrochemical sensor that continuously measures very low concentrations of ethanol vapor at the surface of the skin, as well as skin properties, such as temperature and ionic conductance.

Similarly, Secure Continuous Remote Alcohol Monitor.RTM. (SCRAM.RTM.), manufactured by Alcohol Monitoring Systems, Inc., is a non-invasive alcohol-detection system that automatically tests for blood alcohol content (BAC) by monitoring transdermal alcohol present in insensible perspiration, which is the constant, unnoticeable excretion of sweat through the skin. SCRAM.RTM. measures the concentration of ethanol (a byproduct of alcohol consumption) in perspiration, in order to determine a person’s BAC.[iv]

Schumer intends to jump-start these technologies using government money to the tune of 12 Million per year.  However, not everyone is pleased with Schumer’s bill. The American Beverage Institute criticized the legislation, saying the devices should be kept to vehicles of repeat drunken driving offenders and not be mandated in vehicles as standard equipment, although the legislation does not include such a mandate. It also argued that the devices could keep people from driving even if their blood alcohol level is less than the limit for drunken driving, such as after having a drink at a restaurant.[v]

Much has been previously written about the promise of technology in ending drunk driving, and about many of the problems inherent in such attempts.  For example, see:

Will Technology End Drunk Driving?

Will Ignition Interlocks End Drunk Driving?

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

[ii] Id.

[iii]According to: Judy L. Randall , June 04, 2010, 6:28AM

[iv] http://www.patentstorm.us/patents/7413047/description.html

[v] Washington Daily Times.com, May 28, 2010.

The Rochester Post has just reported that the number of people drunk driving in Rochester Michigan is down significantly this year.  According to the article:

Data collected over the past two years shows a pattern of decline for drivers caught operating while intoxicated, said Rochester Police Chief Steve Schettenhelm. According to the city’s records, there were 161 such arrests in 2008, an average of about 13 per month. In 2009, there were 132, or approximately 11 per month. As of this month, there have only been 31 in 2010, which comes out to about six per month.

The article is light on explanations for the decrease in drunk driving in Rochester Michigan:

“Arrests are down so far this year. There can be a number of reasons for this,” he said. “Traditionally, arrests pick up in the summer months. So we are down some for the year, but we will have to wait and see if this is a consistent trend.

“The economy may have an effect on the number of people who are out drinking and driving,” he said.

Rochester Detective Paul Matynka said that because of the city’s nightlife amenities, drunken driving arrests generally increase over the weekends.

There is also a claim that although the arrests are down, it has no impact on the police budget.

Schettenhelm said that while the Rochester Police Department does get a percentage of the court fines paid by drunken driving offenders, the decrease in arrests over the past year and a half hasn’t affected revenues.

“We do receive some funds from the court in terms of fines … (but) the money is not really a consideration, considering the total police budget,” he said.

Previous posts have addressed this issue, and suggest that there are many possible causes for fewer Michigan DUI arrests.  For an article discussing the decrease in DUI arrests in Michigan in detail, and offer several explanations, please see:

• Michigan Drunk Driving Arrests Continue Yearly Decline

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!