Articles Posted in DUI Drug Charges

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.

Michigan DUI laws have recently changed, and beginning in September 2016, Michigan drivers who appear to be driving under the influence of a drug other than alcohol may be required to submit to a preliminary roadside drug test.  This preliminary test will be in the form of a saliva test.

The reason for this change in the law is that for many years law enforcement has claimed that people drive under the influence of drugs 7 times more often than alcohol. They also claim that the number of fatal car accidents caused by drivers under the influence of drugs has increased 5% year after year.  One of the problems law enforcement has faced relative to drugged driving cases is that they lacked a reliable inexpensive roadside test for drugs.  That apparently has changed with various saliva drug tests recently coming to market.

In consideration of this newly available saliva test, Michigan has passed a couple new laws to allow it’s use by Michigan police.  Thus, on June 23rd, two separate Public Acts were signed by Gov. Snyder, both regarding a pilot program that aims to test the use of saliva testing to screen potential drugged drivers on the road side.[i]  Both of these acts will take effect on September 22nd and are codified under MCL 257.62a, 257.625r, 257.625s, and 257.625t.

Starting in the fall of 2016, Michigan police will have a new tool to help them fight intoxicated driving.  This new tool comes in the form of a saliva test for drugs, and it will be used in conjunction with a Drug Recognition Expert, or DRE, to help Michigan police arrest for drivers for DUI. Additionally, Michigan has expanded its definition of DRE so as to allow more departments to begin using salvia testing for marijuana.

These tools are important because in Michigan you can be arrested for DUI because you are under the influence of alcohol or under the influence of drugs.  If the DUI involves either drugs or alcohol, the crime is the same, and the punishment is the same.  Michigan’s Governor recently signed a law that creates a pilot program to explore the expanded use of saliva tests for drugs.  These saliva tests will be used by Michigan police in certain DUI traffic stops.

Under this pilot program, Michigan State Police will select five counties for participation.  However, in order to participate, the county must meet certain requirements. For example, the statute corresponding to PA 243, i.e., MCL 257.625t requires that the subject county have at least one certified Drug Recognition Expert (DRE) on staff at any level of agency within the county.[i]

Sleep driving is a well-known side effect of Ambien.  Sleep driving is even listed as a side effect of this drug in the product literature. It is nevertheless illegal to be driving under the influence of Ambien. If you are stopped and the police believe that you are under the influence of Ambien in Michigan, then you will be arrested for DUI; just the same as if you were under the influence of alcohol.  This might be true even if you never intended to commit this crime.

In Michigan driving under the influence of Ambien is considered to be a general intent crime.  This means you do not have the specific intent to commit a DUI to be convicted of it in Michigan.  One reason for this is because intoxication is a defense to specific intent crimes.  If intoxication was a defense to DUI all persons arrested for it could raise intoxication as their defense.

However, an arrest is not a conviction.  Depending on the facts of your case, it may still be possible to raise a defense to the driving element, because even in Michigan a DUI requires the specific intent to drive.  This defense has been successful in many prior Ambien cases in Michigan. In other words, even if the totality of the crime is general intent, the driving element is specific intent.

If you are stopped under suspicion of drunk driving, and your breath test proves you’ve had nothing to drink, you still might be arrested for OWI in Michigan.  This is because the new frontier in law enforcement is the drug recognition “expert” or DRE.

Using a 12-step investigation the specially trained DRE police officer will determine if you are on drugs; and if so, into which of the 7 drug categories the drug might fall.  Your blood will be drawn, and you will be prosecuted for drugged driving.

Assuming you decide to fight the charges, when your case gets to trial, the police officer/DRE will proudly explain to the jury that they have undergone rigorous testing, and that the DRE methods have been scientifically validated.

In Michigan, there is no legal difference between driving under influence of ginseng and many other herbs and driving under the influence of alcohol.  Why?  Because according to Michigan’s OWI laws, intoxication can be proved by showing the presence in your body of any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance, that is listed in the official United States pharmacopoeia.

The principle charge for intoxicated driving is called “OWI” and a prosecutor has four different theories he or she can use to prove this crime.  Two of them involve alcohol, and two involve drugs.  Regarding the drug theories, if a driver is found to have any amount of a schedule one[i] drug in their system while operating; then they are in violation of the OWI law regardless of amount present and regardless of whether (or not) such amount caused intoxication.  On the other hand, for non-schedule one drugs, the prosecutor must prove that the drug in question actually caused the driver’s ability to be substantially lessened.

Michigan’s laws prohibiting driving while intoxicated or impaired are in a constant state of flux,  but are moving ever forward toward accomplishing two goals: (1) increasingly draconian penalties for violation, and: (2) increasingly broad definitions of prohibited behavior.  In the second instance, the trend has been toward either lowering the “legal limit” for alcohol and/or broadening the definition of intoxicating substance or “drug.”

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