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In the past decade, the United States Supreme Court has issued several opinions addressing a DUI defendant’s right to confront a breath or blood test used by the prosecution to prove intoxication at trial. In legal terms, the word “confront” essentially means cross-examine. An example of this confrontation right in the context of a drunk driving case would be the right to cross-examine the police officer who administered a breath test, or the forensic analyst who prepared a blood sample for testing.  This issue came before the USSC again in 2018.  The name of the case is Stuart v. Alabama.  Unfortunately, the USSC declined the opportunity to clarify this issue, and by order dated November 19, 2018, denied the defendant’s petition for review (certiorari).

However, there was a dissenting opinion written by Justice Gorsuch and joined by Justice Sotomayor.  This opinion contains some interesting information.  Perhaps picking up the cross-examination baton laid down by Justice Scalia, Justice Gorsuch refers to cross-examination as “the greatest legal engine ever invented for the discovery of truth.”  Furthermore, that:

Cross-examination is an essential guard against such mischief and mistake and the risk of false convictions.  Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process.

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No, according to Federal law, you are not allowed to both use medical or recreational marijuana and have a Michigan Concealed Pistol License (CPL).  This is due to a conflict in state and federal law.

Michigan is not the only state facing this dilemma. For example, a man in Pennsylvania has filed a lawsuit seeking clarity regarding gun ownership rights.  According to the HuffPost,

A medical marijuana prescriber and patient is challenging President Donald Trump’s administration over a federal statute barring cannabis users from purchasing or owning firearms, even when they take the drug legally pursuant to state law.

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Yes, when you’ve been stopped for drunk driving the police must read you your rights.  In fact, the police may be required to read to you three separate sets of rights; one related to the roadside or preliminary breath test (PBT), the second set of rights related to the second breath test at the station, and under certain circumstances, the police must read to you your Miranda rights prior to questioning you.  Each of these sets of rights is discussed below.

Preliminary Test Rights.

According to the Michigan State Police Preliminary Breath Test Manual, the following rights should be read to a person before asking them to submit to a roadside breath test:

Michigan law requires you to submit to a preliminary breath test upon request of a peace officer.  Your refusal to submit as requested shall result in your being charged with a civil infraction with a penalty of up to a $100.00 fine.

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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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Now that Michigan’s voters have approved the legal use of recreational marijuana, how will this impact Michigan’s laws against intoxicated driving?  The answer is – not very much.

As of the date of this article, it is unlawful in Michigan to drive under the influence of or while impaired by alcohol, drugs, or a combination of alcohol or drugs. This includes marijuana. However, the current state of the law in Michigan is that there are two different standards that apply to marijuana, one for medical marijuana users and one for everyone else.  For a person with a medical marijuana card who is otherwise using medical marijuana legally, the police must prove that the marijuana substantially lessened their ability to operate the motor vehicle.  For everyone else, zero tolerance applies, and simply driving with any amount of marijuana in your system is enough to violate the intoxicated driving laws.

Because marijuana has just become legal to use recreationally in Michigan, it will take some time for the intoxicated driving laws to catch up to this new reality. When they eventually do catch up, two things are likely to happen. First, marijuana will no longer be classified as a zero tolerance “any amount” drug.  This zero-tolerance standard will be replaced by a legal limit for marijuana.  Other states have set arbitrary amounts, such as 5 ng of THC (marijuana’s active ingredient), so the first thing Michigan’s lawmakers will need to decide is this arbitrary legal cut-off.  Next, Michigan’s laws of intoxicated driving, found in the Michigan traffic code’s chapter 257 will need to be amended. Until both things happen, Michigan’s recreational marijuana users will be in a sort of legal limbo while trial courts try to decide the appropriate legal standard for judges and juries to apply in the review of these cases.

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Now that Michigan’s voters have spoken, and we are now among a handful of states that allow the legalized use of marijuana, how will this change in the law impact the terms and conditions of probation?  The answer is, it depends on the judge!

When a judge determines the conditions of probation for any crime, he or she is governed by Michigan Compiled Laws section 771.3, which sets forth all the mandatory conditions of probation.  This law does not specifically state that a judge can order a person to stop using drugs or alcohol, but there is a catch-all provision, and this indicates that a judge may impose any other lawful condition of probation as the circumstances of the case require or warrant or as in his/her judgment are proper.  Thus, it is very common for judges to order people to stop using alcohol, illegal drug or even legal drugs without a prescription. For those judges who believe that the circumstances of a case require the non-use of recreational marijuana, all the judge need do is order it as a condition of probation.

This issue has already been litigated as it relates to medical marijuana, and Michigan’s courts have found that the conditions of probation can include the non-use of lawfully prescribed medical marijuana.  There seems to be no good reason why the same would not be true of recreational marijuana.

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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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All firearms are inherently dangerous, so naturally, it is against the law in Michigan to possess or use one under the influence of alcohol or drugs. Because of the danger posed by individuals who violate this law, penalties are quite significant and are set forth in the statute found at Michigan Compiled Laws sec. 750.237.

This statute defines “under the influence” the following three ways;

  1. You are “under the influence” of alcohol, drugs or a combination of alcohol or drugs, and/or
  2. You have a bodily alcohol level (BAC) of .08 or more, or are;
  3. You are impaired by alcohol, drugs or a combination of drugs and alcohol.

This crime is categorized as a misdemeanor punishable by possible imprisonment for up to 93 days.  Additionally, if you are found guilty of this crime, you may also be required to pay a fine of not more than $100.00 for carrying or possessing a firearm, or both, and not more than $500.00 for using or discharging a firearm, or both.

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