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President Trump’s Department of Justice has proposed a new Office of Forensic Science and Forensic Science Board within the DOJ. This new board would have governing authority over all of Michigan’s forensic labs, including the Toxicology lab located in Lansing.  Nearly all drivers arrested for intoxicated driving and subjected to blood draws currently have their blood tested at this Lansing Toxicology lab.  Consequently, this new change could impact more than 10,000 DUI cases each year in Michigan.

The new Department would be headed by a Director, who would be appointed by the President.  The Director would report to the Attorney General. According to subsection b of the proposal, the mission of the new Forensic Science Division would be: to strengthen and promote the use of forensic science within the judicial system by supporting forensic science service providers, as they continually improve the validity, quality, and practice of forensic science through innovative solutions that focus on research and development, testing and evaluation, technology, information exchange, training, and capacity building for the forensic infrastructure.

One of the duties of the Director will be to work to ensure that appropriate accreditation, certification, standards, methods, best practices, and organizations exist for forensic disciplines.

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If you were arrested for drunk driving in Michigan, then you should talk to your lawyer about whether starting with a structured 12-step program such Alcoholics Anonymous, or AA, may help your case. While clearly the best known, AA is not the only 12-step program, and it may not be the best option for you.

Understanding 12-Step Programs:

A 12-step program is a structured support system designed to aid individuals in overcoming addiction, fostering personal development, and maintaining sobriety. Core principles include acknowledging powerlessness over the substance, seeking guidance from a higher power (interpreted personally), making amends, and supporting others in their recovery journey.

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The answer is somewhat unclear because so far no Michigan court has specifically ruled that police officers must administer standardized field sobriety tests in accordance with protocol set forth by the National Highway Traffic Safety Administration (NHTSA).  However, a new law was recently passed in Michigan that suggests that the legislature wants substantial compliance with the NHTSA standards.

The new law, with an effective date of September, 2016, reads as follows:
257.62a “Standardized field sobriety test” defined.

Sec. 62a. “Standardized field sobriety test” means 1 of the standardized tests validated by the National Highway Traffic Safety Administration. A field sobriety test is considered a standardized field sobriety test under this section if it is administered in substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration.

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In some situations, the police can charge you with drunk driving in Michigan even if the police never saw you driving your car.  However, the legal analysis in these cases is very fact specific, and the law is quite complex.  In some situations, courts have upheld convictions when the police never saw anyone operating the car. But in other cases, courts have held there was no operation.  To understand why this difference exists, and why a court might allow such a non-witnessed drunk driving case to stand, you need know a few things about the drunk driving laws of Michigan.

To begin with, the crime of drunk driving is called OWI or “operating while intoxicated.”   Michigan does not use the word “drive” so Michigan’s drunk driving law is not called driving under the influence (DUI), or driving while intoxicated (DWI).  The word operate is much broader than the word drive. The Michigan Motor Vehicle Code defines “operate” or “operating” as “being in actual physical control of a vehicle” whether licensed or not. MCL 257.35a. Thus, the plain language of the statute requires that driver’s actions must establish “actual physical control” of the vehicle.[i]   But the analysis doesn’t end there.  What happens for example if a person is asleep or unconscious?

A question sometimes raised in this context is whether a sleeping or unconscious driver can be found to be in “actual physical control.”  In these cases, which often have unique facts, the Michigan Supreme Court has expanded the term “operation” such that ‘operating’ is defined in terms of the danger the OUIL statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property. Accordingly, “[o]nce a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.”[ii]

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Collateral consequences are the loss of rights a person suffers after being convicted of a crime.  They have previously been described as having the potential to cause “civil death.”  Such consequences are different from the punishments that might be imposed by a judge as part of a criminal case.  This is because collateral consequences are not found in criminal statutes.  Instead, they often arise out of the myriad civil statutes or civil consequences that are triggered by the criminal conviction.  This means that most collateral consequences require no judge to impose them, and they afford no opportunity for due process.

Most crimes are punishable by a statutorily allowed maximum period of prison or jail time.  For example, a standard, first offense drunk driving in Michigan, carries with it the possibility of up to 93 days in jail.  However, for cases involving a test result of .17 or above, the maximum penalty increases to 180 days.  In a drunk driving causing death, charged as second-degree murder, is punishable by life in the state prison, or any term of years.  These specific statutory maximums are significant because a criminal lawyer advising her client about a conviction can usually predict, at least within a range, the actual time a client will spend behind bars. The same is most certainly not true of collateral consequences.

A case addressing this is United States v. Nesbeth, 188 F.Supp.3d 179 (2016).  Nesbeth was convicted of importation of cocaine and possession of cocaine with intent to distribute.  The advisory guidelines would have allowed a sentence of between 33 and 41 years in prison, but because of the significant collateral consequences, the judge saw fit to give him no jail at all, meaning straight probation.  The opinion explaining why should be required reading for all criminal defense attorneys.

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If you’ve used medical marijuana in Michigan, drive your car, and are stopped by the police, you can be charged with OWI or “operating while intoxicated.”  This is because Michigan’s drunk driving statute, found at Michigan Compiled Laws 257.625, indicates in part as follows:

As used in this section, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

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A Utah lawmaker is backing a change in Utah’s DUI law lowering the legal limit to .05%.  Utah’s current legal limit is .08%. This change would make Utah the first state in the Union to reduce the legal limit from .085 to .055.  In 2005 Michigan was the last state to reduce the legal limit to .08.  Michigan’s legal limit goes back up to .10 in 2018.

The legal limit is currently .08% in all 50 states.  This uniform legal limit came as part of a Congress -approved amendment to the 2001 transportation appropriations bill that tied the legal limit into highway funds.  In other words, a .08% legal limit was a condition precedent to a state receiving highway funds from the national government.  However, there appears to be no reason states can’t reduce the limit even further, and there is little doubt that after Utah many other states will follow suit.

The average drinker need only consume two units of alcohol to be at a .05.  A unit of alcohol is one 12 oz. 5% beer, one 6 oz. 12% wine or one shot (1.5 oz.) of 80 proof liquor.  A unit of alcohol is also sometimes called a standard drink.  Each standard drink will raise a person’s blood alcohol level .025 per drink.  The average man eliminates alcohol at .015% and the average woman eliminates at .018 per hour.

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Disclaimer: This case was overruled by the more recent Michigan Supreme Court case of People v. Rea.

The Michigan Court of Appeals recently ruled that a person may drive drunk in their own driveway.  The name of the case is People v. Rea, 315 Mich. App. 151 (2016), and in this case, after having “a lot” to drink the defendant decided he wanted to listen to some music. So, he drove his car from his garage to a point in his private driveway in line with his house.  A neighbor didn’t like the defendant’s taste in music and called in the loud music.  Thereafter, two police officers responded to the 911 call.

When they arrived, the defendant was seated in the driver’s seat, with the driver’s side door open. According to the court’s opinion, the “vehicle was parked deep in defendant’s driveway, next to his house.”  One of the officers told him to turn down the music, and then left.  At some point the neighbor called again, and when one of the officers returned, he could not see the defendant’s car.  The neighbor called a third time and this time when the police arrived the officer observed that the garage door was opened, “and defendant’s vehicle backed out for “about 25 feet” before stopping still within the defendant’s yard and property. He then pulled the car back into the garage. He was arrested as he walked toward his house.”

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An attorney in California has been charged with DUI for allegedly driving under the influence of caffeine.  The officer who pulled the man over was working on alcohol enforcement when the driver pulled in front of him, cutting him off, and then driving erratically.  A roadside breath test showed no alcohol was present in the driver’s body.  18 months later, a blood test was produced only showing the presence of caffeine.  Apparently, a motion to dismiss was denied and the case set for trial.

While this case appears to be first of its kind, it’s not likely to be the last.  In California, like Michigan, it is unlawful to drive under the influence of any drug, including alcohol.  The term “drug” is very broadly defined, and therefore can include caffeine and even less “intoxicating” substances like ginseng.

This is because, as previously discussed, Michigan’s definition of drug includes even things listed in the homeopathic pharmacopoeia.  Specifically, Michigan’s drunk driving statute, MCL 257.625(25) indicates that an intoxicating substance means: any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance, that is either of the following:

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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:

  • Michigan Police to Begin Testing Intoxicated Drivers Saliva for Drugs

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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