Felony Drunk Driving
In addition to the felony charge of a 3rd offense, Michigan's drunk driving law makes it a felony to be involved in an accident causing death or "serious impairment" of another while intoxicated, impaired, or with the presence of any amount of a controlled substance.
The drunk driving statute makes it a 15 year felony for causing the death of a person, and it is a 20 year felony for causing the death of a police officer, firefighter or other emergency response personnel.
It is a five year felony for causing "serious impairment" of a body function of another person.
In 2004, I wrote:
"Interestingly, under the new revisions to the drunk driving laws in September 2004, impaired driving is no longer strictly defined by a certain blood alcohol measurement. Similarly, the "any amount of a controlled substance" does not, on its face, require a certain amount of controlled substance to be present. Under circumstances where someone is injured or killed, both of these provisions are questionable, since the level of impairment and relationship of a controlled substance's presence might be completely unrelated to the cause of the accident. As an example, a person might have had a single alcoholic beverage or smoked marijuana days prior to an accident caused by the other driver running a red light. The other driver having died in the accident, an investigation reveals a small presence of either alcohol or a controlled substance. Without any doubt that the accident was completely unavoidable and caused by the decedent, the surviving driver might still be charged with an extremely serious felony."Potentially, what I wrote years ago is more alarming today. Having a single drink and getting charged is, of course, a pretty extreme example, but a woman was charged in the Bay City area in 2008 involving a multiple death accident, including an infant child. Her BAC was well below the legal limit. Despite the statutory provisions dealing with how breath and blood testing relate to the time of the accident, Dr. Michelle Glinn of the Michigan State Toxicology Unit testified that the driver's blood alcohol was higher at the time of driving using a highly speculative and unreliable method known as retrograde extrapolation. The court permitted her speculative testimony, despite prevailing authorities throughout the nation. See, for example, Mata v State, 46 S.W.3d 902 (Texas 2001). Horrible cases tend to make horrible law, and the woman was convicted.
Additionally, since writing that statement in 2004, the Michigan Supreme Court clarified the offense of OWI causing death in the case of People v Schaefer, 473 Mich 418; 703 NW2d 774 (2005), holding that it is not the intoxicated driving that must be proven to have caused death, but, instead, that a person was intoxicated at the time of an accident causing death. At best, the prosecutor must only show that intoxication was a proximate cause of the accident, so the burden of proof is lower today. The more disturbing case in recent history, however, is People v Derror, 475 Mich 316; 715 NW2d 822 (2006), where the Michigan Supreme Court held that the mere presence of marijuana metabolite in a person's blood meant that the person was intoxicated. This opinion is a national embarrassment. Several commentators around the nation concluded that the Michigan Supreme Court had turned science on its head, but it is due in large part to the faulty evidence received from the state toxicologist. As the Court explained in its holding:
The prosecution expert in Derror, Dr. Michelle Glinn, further testified, without dispute: THC is taken up into the brain and into fat cells and into other tissues, and it leaves its effects on the brain and central nervous system for quite a while after it's not detectible in the blood any further. The effects of—it causes chemical changes in the brain, basically, that persist for quite a while. And you can document defects in lab studies of THC beyond the time when it's no longer detectible in the blood.Marijuana metabolite is indicative of nothing more than prior ingestion, perhaps even inadvertent ingestion. Dr. Glinn's testimony is misleading once one considers that studies have consistently failed to show reliable methods to determine impairment levels for marijuana. Basically, some people get stoned easily and cannot drive, while others show no signs of impaired driving skills. To suggest that "defects in lab studies" relate to the sort of gross motor skills impairment that the drunk driving laws attempt to proscribe is absurd.
It is also disturbing that the Michigan State Police Toxicology Unit was able to get new administrative rules approved in 2005 regarding drug and alcohol testing. The new rules permit testing "blood, urine, or other biological samples." As this pertains to the Derror case, it is arguably permissible for the police to test hair samples to show that a person was intoxicated at the time of an accident. Given a horrible case, a jury might overlook the "proximate cause" of the accident based upon the results of a hair test.
Similarly, new and highly untrustworthy tests known as EtG tests have grown fashionable with probation departments across the state in recent years. EtG tests detect alcohol metabolites in urine for days and up to weeks, but these tests are largely speculative. Even test producers acknowledge that positive EtG testing results can be produced through inadvertent exposure to dozens of household items, and they admit that the numerical results of these tests do not reflect greater or lesser consumption of alcohol for positive tests. Nonetheless, it is only a matter of time before someone is charged with a serious drunk driving accident coupled with an EtG test employed to show recent ingestion of alcohol. And then, start to watch out for Fatty Acid Ester (FAEE) hair testing, which detects alcohol consumption for up to six months or more.
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