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!

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.

Gas Chromatograph

Many Michigan DUI lawyers see blood tests as nearly impossible to defend.  This may be due to a lack of knowledge on their part, or it may be due to a belief that jurors see blood tests as irrefutable.  Regardless of the basis this belief is simply not true.  Armed with the right knowledge, blood tests are actually very often easier to defend than are breath test cases.

So, from where does this “right knowledge” come?  Well, it comes primarily from two places.  First, in order to properly defend a DUI case in Michigan involving blood test evidence, a lawyer must seek out specialized training in gas chromatography.  Very few Michigan DUI lawyers actually do this because such training requires a fairly substantial commitment in both time and money.

The Michigan DUI lawyer must also seek out the appropriate information from the laboratory responsible for testing the blood.  In a criminal case, getting information from the testing lab requires that the DUI lawyer utilize a process called discovery.  As will be shown, when properly pursued, this discovery process can yield some remarkable information - information that can be used to win a client’s DUI case. And, this is exactly what happened recently in both Washington and Colorado.

Problems with DUI Blood Tests in Colorado:

According to Colorado DUI lawyer Tim Bussey, (and as written about in the Colorado Springs Independent):

“The Colorado Springs Metro Forensic Laboratory has reported that it inaccurately reported approximately 200 blood results from 2007 through 2009.  Most were from 2009 and all were reported high. The Lab believes that the N-Propanol solution was incorrect which led to an inaccurate high BAC result.  They have run their own experiments to determine why the N-Propanol concentration was off.”

Mr. Bussey further stated that: “at this point I am not sure that they (the Colorado Forensic Lab) really know what the problem was and if it has been fixed.  I have not heard of such an issue at other labs but it certainly is an area that other DUI lawyers may want to explore.”

Here is an explanation from the Colorado Springs Independent of why this is important:

From a chemist’s point of view, blood alcohol tests are simple: You prepare a batch of maybe 20 samples in glass vials, each with a precise amount of blood, a couple other ingredients, and a solution containing n-propanol, a form of alcohol that is almost never ingested. Each sample gets run twice, along with more than a dozen other solutions used as calibrators and controls.

Once the vials are sealed and catalogued, a machine detects the amounts of ethanol (the stuff in booze) and n-propanol in each, which show up as peaks in a resulting graph. Since the n-propanol amount is supposed to be consistent in all vials, the blood alcohol level can be calculated from the ratio of ethanol to n-propanol.

“All of her ethanol peaks were accurate,” he says, as were the n-propanol peaks for the calibrators and controls. In bad batches, however, her n-propanol peaks were consistently — and inexplicably — lower.

Problems with DUI Blood Tests in Washington:

In Washington the problem was more akin to the outright fraud of the part of a laboratory employee rather than simple neglect or incompetence as was demonstrated in Colorado.  According to the Seattle Times:

A San Francisco coroner’s supervising toxicologist vouched for blood-test results in drunken-driving cases for two years before prosecutors told defense attorneys that a Washington state court had labeled her a “perpetrator of fraud” while running that state’s toxicology lab.

The failure to tell defense attorneys about Ann Marie Gordon’s past problems could prove costly to San Francisco District Attorney Kamala Harris’ office.

From 1999 to 2007, Gordon ran the Washington state toxicology lab, whose main job was to analyze tests in drunken-driving cases. The lab was shut down after state agencies discovered that Gordon had vouched in court for the reliability of alcohol-detection equipment when she had not performed the tests herself.

In San Francisco, Gordon has signed sworn statements verifying hundreds of blood-test results, mostly in drunken-driving cases, as a $105,000-a-year supervising forensic toxicologist in the San Francisco chief medical examiner’s office since being hired in 2008. She has also testified in trials.

Interestingly, Michigan pays its toxicologists about the same salary paid to Gordon, but so far, there has been no proof of fraud or obvious neglect in Michigan’s blood testing program.  While this is true “so far” this may not always be true.  As indicated in the Colorado Springs Independent: “The error (in Colorado) was very difficult to identify,” he says, with no apparent pattern or equipment failure to explain.”

If you are arrested of DUI in Michigan it pays to have a lawyer well trained in blood testing.  With proper discovery it just may turn out that your blood test was too high.

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 Blood Testing

Police departments across the United States are beginning to mandate that those suspected of driving under the influence (DUI) take an automatic blood test to determine their blood alcohol content (BAC).  This is contrary to the traditional and widely used breathalyzer test.  Currently, Michigan uses the DataMaster to test DUI suspect’s breath, and blood is usually drawn when the motorist refuses to submit to the breath test.

While blood tests have several law enforcement advantages, blood test results take much longer to process than does a breathalyzer test. In Michigan the alcohol blood test in a drunk driving test usually takes about two weeks, but it can take much longer.  It takes longer still before the prosecutor and the accused learn of the blood test results.

Another law enforcement advantage with a blood test in a drunk driving case is that a breathalyzer tests cannot detect the presence of drugs in a person’s blood stream, but blood tests can. (Eiserer).   If in fact drugs are present, this may make prosecution for drugged driving a viable option. Additionally, a 2008 federal study found that it results in more defendants pleading guilty, fewer cases going to trial and increased conviction rates.

Some police departments are still considering blood tests as the only option to obtain a suspect’s BAC. Many officers are being trained across the county to draw the driver’s blood. In some states, such as Arizona, police officers are actually trained to (themselves) draw blood at the roadside.

However, blood tests also create many additional legal challenges that do not exist with breath test cases, some of which can even lead to charges being dismissed.  This is why many departments haven’t fully committed to this option yet.

With the accuracy that blood test results purport to provide, more and more DUI accused are taking a plea and not going to trial.  This can be a costly mistake.  If you have been charged with a Michigan DUI then it is important to discuss blood test defenses with your attorney.  You may have defenses with the blood test result that would not exist with the breath test.