Articles Posted in DUI Drug Charges

A research letter recently published in the JAMA Internal Medicine Journal examined the correlation between the legalization of recreational marijuana and traffic fatalities. The letter’s authors Kamer & Warshafsky begin with the proposition that marijuana use impairs driving ability. The authors go on to suggests that because there is a correlation between an increase in traffic deaths and the legalization of recreational marijuana, impaired driving must be the cause. The authors of the letter reviewed data collected from four states: Colorado, Oregon, Washington, and Alaska. The authors did not look at traffic deaths in Michigan because there isn’t enough data from Michigan yet.

The authors found that traffic deaths increased by 75 per year in Colorado. The authors did not find an increase in traffic deaths in Washington. Overall, the letter predicts that if every state fully legalizes marijuana, traffic deaths would increase by 6,800 every year in the United States. Time will tell whether Michigan will be like Colorado, and see a large increase in traffic deaths, or like Washington where there was no such increase.  And time will also tell if any observed increase in Michigan is actually caused by marijuana impaired drivers. The impaired driving lawyers at the Barone Defense Firm note that correlation is not causation, and that the only thing this letter has established is correlation.  The authors admit that much more research is needed on this topic, and that their findings were “mixed.”

What’s the difference between impaired by marijuana and under the influence of marijuana?

Immediately upon your arrest for DUI in Michigan the arresting officer notified the Secretary of State. This happens when the arresting officer destroys your plastic license and prepares a DI-177, which is entitled “Breath Blood or Urine Report Michigan Temporary Driving Permit.”  This document becomes your paper license and you will use it to drive until you are convicted or until your case is dismissed.  A DI-177 is only prepared if you agree to take a breath or blood test when asked by the arresting officer.

If you refused to submit to a breath or blood test then the officer will prepare a DI-93, which is entitled “Report of Refusal.” This too becomes your paper license but is only good for 14 days or until after you win your appeal hearing. Because you are not allowed to refuse a breath or blood test your license will be suspended for a year unless your Michigan DUI lawyer demands a hearing within this 14-day period.

Both the DI-93 and the DI-177 are filed with the State of State, and your driving record will reflect this fact.  This means that even before you are convicted of anything in Michigan your driving record will reflect that you have been arrested under the suspicion of drunk driving. All of this applies for any kind of intoxicated driving including driving under the influence of marijuana.

A localized pilot program to allow Michigan police officers to test a driver’s saliva for the presence of marijuana has been expanded statewide.  If you have used marijuana or cannabis containing products and then drive a motor vehicle in Michigan, you should be aware that roadside testing for marijuana use is now available to all law enforcement officers throughout the state.

An example of the kinds of units used in Michigan include the Alere™ DDS®2 Mobile Test System. According to the manufacturer’s website, the handheld unit is easy to use and produces accurate results. It can also analyze for up to six different drugs, including Marijuana.

In evaluating a driver, a police officer would correlate the results of a saliva test with all of the other observable signs of impairment, such as any observations made at the roadside, the driver’s performance on field sobriety testing, and any admissions made. If the officer believes, based on a combination of all of the evidence acquired at the roadside that probable cause exists to make an arrest, then the driver will be taken into custody and charged with DUI. While many people refer to these charges as DUI, in Michigan the crime is called OWI or operating while intoxicated.

Commission Recommends No Legal Limit for Marijuana in Michigan

The Impaired Driving Safety Commission (IDSC) has recently recommended that Michigan lawmakers take no action toward the creation of a legal limit for marijuana.  In summary, the Commission believes that the science does not support a one size fits all legal limit threshold for drivers who have used marijuana.

The IDSC was established in 2017 by Michigan Compiled Laws sec. 28.793.  According to subsection 2 of this law:

(2) The commission shall research and recommend a scientifically supported threshold of THC bodily content to provide evidence for per se impaired driving in this state. The commission shall exist until it submits the final report.

Slow Driving, Glazed Dilated Eyes and Odor Sufficient to Prove Marijuana Impairment

Michigan’s recreational and medical marijuana laws continue to be amended, modified and refined.  These changes have helped to clarify many aspects of these laws, but when it comes to driving, a big unanswered question remains; how do the police and prosecutor prove impairment from Marijuana?  There is no legal limit for marijuana, and many question the efficacy of field sobriety tests in reliably predicting intoxication.

At present, regarding this issue, Michigan’s recreational marijuana law, known formally as the Marihuana Cultivation and Taxation Act, indicates in sec. 4 only that Michigan law does not permit:

a) operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marihuana; and b) consuming marihuana while operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat, or smoking marihuana within the passenger area of a vehicle upon a public way.

Am I Responsible for Drugs in a Car I am Driving?

Yes, it is possible for you to be arrested, charged and convicted of a drug charge for drugs found anywhere inside a car you are driving. Because of the concept of constructive possession, you can be charged even if the drugs don’t belong to you. Provided you have knowledge of the drugs, and the right to control them, you can be charged with possession of drugs that are not actually in your purse or pocket.  If there are enough drugs, and other “indicia of intent to sell” you can also be charged with delivery of drugs, a much more serious crime. This concept of constructive possession can be applied to marijuana, unlawful prescription drugs, drugs like heroin, cocaine, meth. and many other drugs.

It’s always good to remember that an arrest is not a conviction, and just because the police can charge you with a crime does not mean the prosecutor can prove it happened.  Once you’ve hired an experienced drug crime lawyer, he or she will be looking for various ways to defend and win your case.  If you encountered the police while driving a car, and during the encounter, drugs are found, your lawyer will first want to determine if there is a search and seizure issue. If the police violated your fourth amendment rights during the encounter, then this can result in the suppression of any evidence found.  Since a drug charge is dependent on evidence of drugs, suppression of the evidence will often lead to dismissal of the charges.

If your car was stopped by the police, then your lawyer will also want to examine the record to determine if the vehicle was lawfully stopped. This is a different kind of search and seizure issue, and just as with the drugs, if your fourth amendment rights were violated by the traffic stop, this can also lead to the dismissal of your case.  This is based on the “fruit of the poisonous tree” doctrine, which essentially stands for the proposition that any evidence found after the unlawful stop is inadmissible as evidence.

Can I Legally Use Marijuana in Canada then Drive Home to Michigan?

No. Using Marijuana lawfully in Canada puts you at risk of an intoxicated driving charge in Michigan. This is true even though Canada recently passed new federal laws effectively making it legal to possess and use marijuana.  Nevertheless, this new Canadian law may have an impact on how intoxicated driving laws are enforced here in Michigan. To understand why it’s helpful to briefly summarize Michigan’s drugged driving laws.

Until marijuana is also legalized for recreational use, Michigan’s intoxicated driving laws distinguish between the lawful and the unlawful use of marijuana.  For people who can lawfully use medical marijuana, the police and prosecutor must show that the marijuana lawfully consumed substantially lessened the ability to operate the motor vehicle.  In these circumstances, the police and prosecutor will rely on the driving observed and the roadside behavior of the motorist, including the performance on any field sobriety tasks, administered.  Sometimes a blood test result showing a high level of THC in the blood will also be used to bolster their evidence of intoxication.  If the jury believes that all of this evidence shows that the driver was intoxicated, then a conviction for OWI or Operating While Intoxicated will follow.

This level and type of proof are much different for the unlawful use of marijuana where the prosecutor need only show that at the time of driving the accused had any amount of THC in their blood.  This is a zero-tolerance crime, meaning that the prosecutor is relieved of any burden to show intoxication.  Simply having the THC in the bloodstream at the time of operation is sufficient.

Michigan to Begin Roadside Saliva Testing for Drugs

In 2016 new laws were passed to allow and encourage roadside salvia drug testing.  The laws are set forth in MCL 257.62a, 257.625r, 257.625s, and 257.625t.  Michigan’s legislators passed these new laws because there is a belief that more drivers are under the influence of illegal and prescription drugs.  In fact, according to NHTSA, there has been a 32% increase in fatal accidents involving drug use.

As has been previously reported, the testing under these laws was delayed, and apparently, the Michigan State Police are ready to roll out the new program in five counties.  These five include Berrien, Delta, Kent, St. Clair and Washtenaw.

The saliva tests will be given when a motorist is suspected of being under the influence of drugs.  This might happen when the driver exhibits signs of intoxication, but a roadside breath test shows zero or very low for alcohol, or when the belief is that drugs may be on board in addition to any alcohol.

Boyle Presents at Drugged Driving Seminar in Lansing Michigan

Imagine you have done nothing wrong but for a minor moving violation. You have not been drinking.  You have not consumed any prescription or illegal drugs.  You tell the officer the truth.  But then you are arrested for suspicion of driving under the influence.  This was the very unfortunate circumstance for not one, not two, but three Georgia women, all arrested by the same highly credentialed, drug specific trained, experienced police officer.[1]

This was the story that Michael J. Boyle shared with a conference room full of defense attorneys and prosecutors of WHY they were all there today.  Those three women are not the only ones that end up wrongly arrested, and it is not only happening in Georgia, but in Michigan and in every other state.  The only way to protect those from wrongly arrested, and potentially wrong convicted, is to have an attorney with the experience and knowledge to know how to handle the case.

On May 12th and 13th Attorneys from across Michigan gathered in Lansing for the first ever Seminar put on in concert by the Michigan Association of OWI Attorneys (MIAOWIA) and the Marijuana Law Section (MLS) of the State Bar of Michigan.  The two-day Marijuana Criminal Law Seminar titled “Everything About Medical Marijuana in Michigan” covered a variety of current marijuana issues including Hot Topics, Search and Seizure, License Restoration, Section 4 and Section 8 Hearings, Marijuana Drug Recognition Evaluations (DRE), Chemical Testing for Marijuana, the most recent Michigan Case Law and Legislative Updates, and Marijuana and Driving in Michigan.

Michigan Saliva Drug Test Program Delayed Until Spring

Michigan passed a law such that beginning in September 2016 police were going to start testing a salvia drug swab.  Apparently, however, the technology has not caught up with the law, and so, according to Mlive, the program is being delayed.  An MSP spokesperson said the program isn’t likely to get started now until spring 2017.  To read more about this new law, see:

The reasoning behind this new law is simple: drunk driving arrests are declining, year after year, in nearly every state in the union.  This presents a funding problem for many police departments and courts.  This is because the police receive money directly from each drunk driving arrest they make in the state of Michigan.  This money comes in the form of “costs of prosecution,” which vary from about $250.00 per arrest to sometimes 2 or three times that much.  This accounting for police overtime can include an hourly accounting of the police time necessary to process the person they arrested.  These costs of prosecution are added to all the other fines and court costs a convicted drunk driver is forced to pay.  Courts get their money from each drunk driving arrest in the form of these fines and costs.

There are many ways to make up for this loss in revenue attributable to the declining numbers.  One would be to try and increase the number back up by lowering the legal limit, thereby bringing even the most responsible drinkers into the law enforcement web.  More than likely the legal limit will be reduced to .05 in Michigan, it’s just a matter of time.  However, there are no bills pending in Michigan to reduce the legal limit.

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