FOR IMMEDIATE RELEASE                                                                                                       September 10, 2004

Administrative Challenges to the New OWPD Law Mounting.

GRAND TRAVERSE COUNTY -- A motion was filed on September 10, 2004, challenging the unconstitutional practices of the Michigan Department of State Police in enforcing the new "Operating with the Presence of Drugs" law. The defendant in the case is charged with Operating While Intoxicated -- Presence of a Controlled Substance Causing Death, facing ten years in prison.

Michigan passed the new law, Operating with the Presence of Drugs (OWPD), as part of a package of drunk driving laws lowering the legal drinking limit to 0.08 to maintain federal highway funds The new OWPD law imposes strict liability for having “any amount of a controlled substance” present in the body while operating an automobile. The law does not define “any amount,” and it does not say how to detect or measure the presence of a controlled substance in a person’s body.

Adopting arguments developed by attorney Steven N. Gotler, the defendant has challenged the State Police's unauthorized use of internal, informal policies on how to decide whether a person has a presence of a controlled substance in his or her system. "Under the state statute, the state police were required to approve testing methods under the Administrative Procedures Act," Gotler stated. "Rather than publishing their proposed rules and accepting public comment from legal and scientific experts in the field on their testing methods, the state police opted to employ their own internal procedure. That's completely unconstitutional."

"This is hardly what might be considered a technical defense," attorney William Maze stated, "the defendant in this case showed absolutely no signs of intoxication at the time of the accident." Maze indicated that the laboratory results were inconclusive. "Using their informal guidelines, the state police exercised their 'discretion' and determined that the test was positive," Maze said.

The state toxicologist could have ruled under the guidelines that the blood test was negative for a controlled substance. "It's completely arbitrary and lacking any rational scientific basis" Gotler concluded, "it literally depends on how the toxicologist feels about the test."

The motion is expected to be heard within the next month and may cause the OWPD law to be shelved while the state police try to properly implement the new law.