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It is an undeniable truth that police officers have a much more difficult time detecting stoned drivers when compared with the relatively easy task of detecting drunk drivers. There are many reasons for this and first among them is that marijuana does not impact driving anywhere near the way alcohol does. It is also debatable whether marijuana impairs a driver’s ability to safely operate a motor vehicle at all.  Debate aside, with the legalization of recreational marijuana in Michigan there is little doubt that police will begin arresting more stoned drivers.  Which begs the question; how will the police know you’re too stoned to drive?

At the beginning, the stoned-driving investigation will closely mimic a drunk driving investigation.  A driver will be stopped for some identifiable violation of the traffic code, such as driving too slowly, disobeying traffic signals and so on. When the police first approach the driver, they will be looking for any signs or symptoms of marijuana use.  Like alcohol, the most tell-tale sign will be the odor of marijuana, which is obviously much more difficult to detect in the case of consumables.  The police will be looking for pupil dilation and eyes that otherwise appear stoned.  Additionally, the police will be looking for packaging or paraphernalia commonly associated with marijuana use.  If marijuana use is suspected, the police will seek an admission to the prior use of marijuana.  The next step may be either to request a preliminary breath test and/or to request the driver’s participation in the administration of field sobriety tests.  The purpose of all this is to determine if in fact the person is impaired and to rule out the possibility that alcohol is causing the impairment.

After a driver blows all zeros (or very low) on the alcohol preliminary breath test, the police officer will need to decide whether to call in a DRE (Drug Recognition Expert). The police officer will also need to decide if they have enough evidence to arrest the driver at this point, or if the DRE needs to continue the investigation at the roadside. In preparation for all of this, in 2016 Michigan expanded its definition of the Drug Recognition Expert.

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Recreational marijuana will soon be legal in Michigan.  Known as proposal one, which passed by a large margin, marijuana won’t officially become “legal” until 10 days after the election is certified by the state board of Canvassers. This is expected to happen sometime in early December.

However, the enabling legislation has not yet been enacted, and because of this, the legalization of marijuana in Michigan raises a whole host of legal and criminal law issues.  For example, once the election result for proposal one is certified, will it then be legal to operate a motor vehicle with marijuana in your system?  What is the legal limit for marijuana?  If you operate below this legal limit, are you immune from prosecution for operating under the influence of marijuana?  Each of these questions is addressed below.

Is it now legal in Michigan to operate a motor vehicle with marijuana in your system?

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Now that the recreational use of marijuana is lawful in Michigan many area police departments are getting ready to identify and arrest more THC impaired drivers.  For example, the Grand Rapids Police Department has requested federal funding that will allow them to send additional officers for DRE training.  According to Fox17 West Michigan, Grand Rapids currently has 5 DRE trained officers, which is a small fraction of the 130 officers trained throughout Michigan.

The new law presents many problems for law enforcement, including the detection and arrest of marijuana-impaired drivers.  The tools used by the police for alcohol enforcement, such as roadside or preliminary breath tests and Standardized Field Sobriety Tests simply don’t exist specifically for marijuana.  This leaves the police at something of a disadvantage when it comes to the enforcement of laws aimed against intoxicated driving, including those high on marijuana.

The DRE program has been around for decades, but Michigan’s police officers only started getting training as Drug Recognition Experts a few years ago.  Now that marijuana use is legal DRE training seems like more of a necessity.  This is because the DRE program claims to allow officers to determine the category of the drug a driver has consumed and allows the officer to correlate that drug with impairment.

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Michigan drivers suspected of intoxicated driving based on the consumption of alcohol, marijuana, or other intoxicating substances, must submit a breath, blood or urine sample upon the reasonable request of a peace officer.  A failure to provide such a sample will result in the police obtaining a warrant for your blood.  You will also be charged with an OWI along with a separate charge for an alleged violation of Michigan’s implied consent law.  This will result in the police destroying your Michigan driver’s license.  The officer will then issue you a 625g paper permit, also called a DI-93, and this will allow you to drive temporarily.

You have a right to appeal the police officer’s determination that you violated the implied consent law, and such appeals go before the Administrative Hearings Section of the Michigan Secretary of State. You or your attorney must mail the request for this appeal hearing within 14 days of the date of arrest. A failure to do so will result in your driving privileges being automatically suspended for at least one year.

According to the Michigan Implied Consent Law, there are only four issues to be resolved at the appeal hearing:

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Prosecutors across the state of Massachusetts have stopped using breath test results obtained during drunk driving arrests for tens of thousands of motorists between 2011 and 2017.  The reason is that defense attorneys representing the drivers discovered that breath test machines throughout the state were improperly calibrated.  If was further discovered that state officials tried to hide this fact from both prosecutors as well as defense attorneys.  During the litigation defense attorneys representing the alleged drunk drivers learned that the Massachusetts State Police Breath Testing Unit had withheld hundreds of documents showing a far higher calibration failure rate than had been reported.  These documents were withheld even after they had been ordered by a judge.

Breath test and computer forensics expert Thomas Workman was involved in the case and was instrumental in helping the defense attorneys uncover the fraud, which included withholding several hundred calibration worksheets the police kept documenting their work.  These calibration sheets collectively showed an unreasonably high calibration failure rate.  Mr. Workman also determined that the calibration protocol the State Police claimed to operate under did not exist. Because of this ongoing litigation, an agreement was reached whereby older breath test results will no longer be used as evidence.  Cases where an accused has already been convicted may pursue an appeal, but only if they can show that their plea or conviction was based only on the breath test, and not on other evidence, such as failed field sobriety tests or erratic driving.  For more information, see “Tainted breathalyzer results could force new trials” Salem News, August 16, 2018.

Although this litigation transpired in Massachusetts and involved a Draeger 9510 breath test machine, this does not mean that it has no relevance in Michigan.  Like Massachusetts, Michigan also has no calibration protocol. There are administrative rules covering calibration checks, which must be performed once per calendar week.  This rule, which can be found at Tests for Breath Alcohol Admin R. R 325.2653, which reads in part as follows: [A]n appropriate class operator who has been certified in accordance with R 325.2658 shall verify an evidential breath alcohol test instrument for accuracy at least once each calendar week, or more frequently as the department may require.  Notice the word “calibration” does not appear here.  A second paragraph from this administrative rule also indicates that Michigan’s breath test machines “shall be inspected, verified for accuracy, and certified as to their proper working order within 120 days of the previous inspection by either an appropriate class operator who has been certified in accordance with R 325.2658 or a manufacturer-trained representative approved by the department.” While calibration can be performed as part of this 120-day inspection, again, the word “calibration” does not appear within this administrative rule.  In fact, the only place the word “calibrate” appears within the whole of the administrative rules is in Table One of Tests for Breath Alcohol Admin R. 325.2658, wherein it indicates that only Class VIB operators can calibrate evidential breath test machines.  There is, however, no description of how such calibration is to be effectuated. Worksheets from the 120-day inspections can be obtained through discovery, yet such worksheets also contain no information relative to the way such calibration was conducted.

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Many courts throughout Michigan employ an alternative form of sentencing for drunk drivers that emphasize treatment over punishment. Collectively, this approach to sentencing is called sobriety court.  Such courts utilize a 2011 Michigan statute codified in Michigan Compiled Laws § 257.304.  This law established new procedures and sobriety court participation provides advantages not available with traditional sentencing.  Eligibility to participate in a sobriety court program varies depending on the location of your arrest and the court where your case is presiding. Sobriety courts are only available to repeat offenders arrested after 2011.  Some courts also impose residency requirements, meaning the offender must live within the jurisdiction of the court.

Sobriety courts are not available in all jurisdictions. The admission into sobriety court is at the discretion of the Judge presiding over the sobriety court. You will only be admitted into sobriety court if you are able to demonstrate a strong commitment to sobriety. If you are considering sobriety court it is best to discuss the specific requirements of your court with your lawyer.

In the sobriety court environment, the judge unofficially acts as a recovery group facilitator.  In addition to the judge, who presides over the official sobriety court sessions, you will also be involved with someone from the prosecutor’s office, a defense advisor, one or more probation officers, including the probation supervisor, and a variety of treatment providers.  All of this takes place in a non-adversarial context and is far less formal than typical court proceedings.  Most of the courts that use this model require a minimum of 18 months of supervision.  The intensity of the probation, including the amount of alcohol and drug testing, support meetings, etc., is greatest at the beginning of the probation period and is gradually reduced as you demonstrate your ability to stay in compliance with the terms of your probation and have demonstrated the ability to maintain your ongoing sobriety.

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There is at least a ten-fold difference in the amounts Michigan lawyers charge to handle a first offense drunk driving case. Fees usually start at around $1,500.00 for a newer less experienced lawyer.  From there, fees increase to as much as $15,000 – $25,000.00, including trial, for a top DUI lawyer.  Where death or serious injury is involved, fees can be even higher.

With such a wide range of fees you may wonder if it is worth spending more to hire a great lawyer?  For some people the answer is clearly yes while for others the answer is more elusive.  Either way, it’s a personal decision that depends on many factors. Before making the investment in a top DUI lawyer, you may wish to consider the following questions:

Is the Lawyer Available to Answer my Questions? If you’re spending a lot of money for a lawyer then you should expect plenty of communication.  Facing a criminal charge can make you feel like you are standing on the edge of an abyss staring into the great chasm of the great unknown.  Your attorney will be your guide helping to bring order into the chaos you are facing. Consequently, when needed, you should have an easy ability to contact your lawyer without delay or hassle.  No lawyer is going to be forever available, and consideration should be given for time spent in court and handling other client’s cases.  Nevertheless, you should expect to be in contact within a reasonable amount of time under most circumstances.  A good way to determine if the lawyer you’re considering will be good with communication after you’ve paid them is to start paying attention from the first time you contact the Firm.  You will begin to get a feel of how important communication is to the lawyers and staff involved. Consider such things as whether a person answers the phone, or it goes to voicemail; does your attorney provide a cell phone number to call or text; how much time does it takes for someone to get back to you for an initial consultation; how much time does the attorney give you in the initial consultation, before you’ve even paid them. If communication seems labored or difficult, then this is a warning sign that will lead to an increase in stress as your case moves through the system.

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Yes, you can lawfully refuse police DUI/OWI tests without penalty. However, there are exceptions, and in some situations, it may not be in your best interest to refuse these tests.  Therefore, before you make this decision, you should discuss your options directly with a lawyer.

Generally speaking, if you are stopped by the police for drunk driving in Michigan, and the police confirm that you’ve been drinking, then the police will ask for your driver license, registration, and proof of insurance.  After the officer runs your information through their computer and confirms there are no warrants our against you, then they will return to your car and ask you to step outside for the administration of several field sobriety tests. These tests usually include the standardized field sobriety tests, such as the horizontal gaze nystagmus, walk and turn and the one leg stand.  Other tests might include the alphabet and counting backward. If the police ask you to take these tests, and you refuse, then no penalty applies.

After you have either submitted to the field sobriety tests or refused them, the police with next ask you to submit to a preliminary or roadside breath test (PBT).  This test can also be refused, however, there is a penalty associated with a refusal of a PBT.  Such refusal is a civil infraction, which means it is not a crime. The penalty is a fine only.  There are no points assessed and there is no driver license sanction.

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A study out of the Mississippi State University suggests that people with bodily alcohol levels at or near the legal limit are actually more creative.  According to a 2018 article in the Harvard Business Review, test subjects who imbibed in alcohol were able to give more correct answers to word problems and also were able to arrive at their solutions more quickly.  An example of a word problem might be: duck, dollar, fold.  The correct answer was “bill.”  Another example would be “peach, arm, tar,” with the correct answer being “pit.”

The study consisted of researchers giving subjects 3 vodka drinks and then testing their breath using a portable breath testing device.  Once the subjects got to a .075, they were given a 15-question word association test. Drinking subjects were able to arrive at correct answers more frequently and more quickly than their non-drinking counterparts.  They also believed that their answers came as a sudden insight, like a light bulb going off above their heads.  This is the kind of insight that an advertising executive might need to think outside the box., which might explain Don Draper’s drinking habits.

According to Psychology Today, the results of this study might be explained by brain science.  It appears that alcohol reduces a person’s working memory and focus.  These two work in unison to assure that we are able to filter out unnecessary information, and focus on what we think is important.  Alcohol tends to reduce these abilities and so there appears to be a benefit in the drinker’s ability to engage in creative problem-solving.

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After you’ve been arraigned on your Michigan DUI/OWI, the court will make a determination as to bond conditions.  The court will add conditions to your bond because you have been charged with a serious offense and the court wants to make sure that, while out on bond, you’re not continuing to endanger the public by driving drunk.  For this reason, many of the conditions of bond in a DUI/OWI case address the abuse of alcohol.

Michigan OWI Bond Conditions

There are many other possible conditions of bond, and these can include any or all of the following:

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