A New Crime under Michigan's Drunk Driving Laws
[Originally published 2003 by William J. Maze - Edits and Updates Bolded 2014]
Michigan recently passed a new law that imposes strict liability for having "any amount of a controlled substance" present in the body while operating an automobile. This new crime, known as Operating with the Presence of Drugs (OWPD), is part of a package of drunk driving laws that were passed last summer purportedly to maintain federal highway funds. Prohibiting "any amount" of a controlled substance is problematic, and the new law is flawed, especially as it pertains to marijuana.
Lawmakers drafted the new statute to state that "[a] person . . . shall not operate a vehicle . . .within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 . . . ." MCL 257.625(8) [Emphasis added.] 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.
Under the new law, a driver can still be charged with OWI (Operating While Intoxicated) for being "under the influence" of drugs. Irrespective of whether a person is intoxicated because they've consumed too much alcohol or a controlled substance, the public is overwhelmingly supportive of efforts to keep drunk drivers off the roads. The new "any amount" law removes the requirement that a motorist be intoxicated. A sober driver can be convicted of drunk driving under the new law based upon analysis of bodily fluids.
Every driver is at risk under this new law. A person does not need to actually smoke marijuana or ingest another controlled substance to be accused of OWPD. Small traces of marijuana metabolites may be found in person's body for a variety of reasons. The state laboratories look for these metabolites as evidence of prior drug usage. Metabolites are created as a by-product of chemicals in the body. Unfortunately, marijuana metabolites can be created by exposure to second-hand marijuana smoke. These metabolites can also be created by ingesting a variety of legal substances such as Dronabinol, an anti-nausea medication used in connection with cancer treatment.
For anyone who does use marijuana, marijuana metabolites can remain in a person's body for several weeks -- long after any physical or psychological effects have completely subsided. Usually, a marijuana user is under the drug's effect for only a few hours, but the new drunk driving statute prohibits driving unless there are no metabolites found in bodily fluids. In other words, mere exposure to marijuana at a concert can make a driver ineligible to drive, and a casual marijuana smoker may face a drunk driving charge weeks after ingesting the drug.
The new law does not lead to safer roads, but it leads to more intrusive searches, additional arrests, and court imposed fines for "drunk driving." Court fines and probation costs can exceed $1,000.00 for a first offense, and a driver's license may be suspended or restricted. Under another new law, the Secretary of State assesses an annual fine of $1,000.00 for two years under Michigan's "Driver Responsibility Fee Act." Without providing safer roads, the Legislature has created a lucrative business of violating motorists' rights.
The problem is that the Legislature proscribed "any amount" of a schedule 1 substance, without defined standards or benchmarks for measuring the amount of a drug present in a driver's body. Our state's police laboratories typically test for trace amounts of a metabolite measured in nanograms per milliliter (ng/mL). A nanogram is one billionth of a gram, which is unfathomably small. With expensive equipment and skilled technicians, drug testing machinery can detect metabolites in picograms per milliliter (pg/mL). A picogram is one trillionth of a gram. One picogram is the equivalent of one drop of detergent in enough dishwater to fill a trainload of railroad tank cars 10 miles long.
The flaw in Michigan's system is best underscored by the U.S. government's policies regarding workplace drug testing. These polices encompass federal agencies regulating employees in railway transportation, airlines, and nuclear power facilities. Drug testing in these critical occupations is far less draconian than Michigan's new procedure.
Under the federal workplace drug testing programs, an urinalysis drug screen of less than 50 ng/mL of marijuana metabolites is considered a negative drug test score. If a positive score is measured in excess of 50 ng/mL, a confirming test must be performed verifying at least 15 ng/mL of marijuana metabolites.
While many people find this type of testing offensive, the federal drug tests are only used to ascertain whether the regulated employee has used illicit substances. The State of Michigan intends to employ these tests to determine whether a motorist is "driving drunk," without regard to the number of nanograms or picograms of drug metabolites detected. Michigan's prosecutors and forensic laboratories have no intention of adopting federal standards, claiming that "any amount" means "ANY AMOUNT". [PAAM - Prosecuting Attorneys Association of Michigan, The Green Light News, July 2003, Vol. 3 Iss. 4 at 2. Capitalization in original.] The prosecutions of several cases with test results lower than federal guidelines are already underway throughout the state.
With many states passing medical marijuana laws permitting small amounts of marijuana to be purchased and used under a doctor's direction, Michigan's new law may violate the U.S. Constitution's Equal Protection Clause, as it fails to recognize that there are legal users of marijuana. This discriminates against out-of-state motorists. Driver's legally using marijuana in California, or another progressive state, can be charged with "drunk driving" weeks later while driving through Michigan, even though that person's consumption of the drug was completely legal and taken under a physician's care.
When the State of Georgia passed a similar law in 1996 prohibiting a driver from operating a motor vehicle with "any amount of a controlled substance" in his or her body, the Georgia courts were forced to address the questions that now confront our state and its citizens. The first question addressed in the State of Georgia was the issue of threshold measurements and benchmarks. Eventually, Georgia's state forensic laboratories conceded that any measure of marijuana metabolites less than 25 ng/mL was insignificant. Laboratory reports could not distinguish between inadvertent use and the existence of metabolites from legal substances from prohibited levels of marijuana in the bloodstream.
Within three years of the law's passage, the State of Georgia's Supreme Court was forced to address whether the statue was constitutional under their State and U.S. Constitution. In Love v State, 271 Ga 398; 517 SE2d 53 (1999), the court held that the statute violated the Equal Protection Clause. The law was unconstitutional because it treated unlawful users of marijuana differently from those with prescriptions for the use of medical marijuana.
Although Georgia was one of the first states to pass the "any amount of a controlled substance" legislation, many states have followed suit, only to be plagued by similar issues in their statutory schemes. Of the states, however, only the State of Nevada has enacted threshold levels much more stringent than the federal government, with initial marijuana test levels of 10 ng/mL being required under the statue, and only 2 ng/mL required in confirming tests.
Nevada's law has come under heavy fire, and it appears to be a case where court-room science has been manipulated for political reasons at the expense of its citizens. Convictions from Nevada's law have not been reported or addressed by appellate courts. Their state lawmakers are considering an increase in threshold levels following "testimony [taken] before the Nevada Assembly Judiciary Committee [indicating] that the state's current law would likely be overturned in court." [Workplace Substance Abuse Advisor Vol. 17, No. 15, June 27, 2003].
It will be interesting to see how Michigan's police and prosecutors will address these issues. Already, several instances of extremely low, trace element cases have been pursued by prosecutors without any regard for the absence of hard science in the courtroom. The Department of State Police Forensic Science Division appears to be on board in these cases, prepared to offer testimony that the accused is guilty irrespective of facts or science.
The practical measures followed by police will also prove interesting. Drivers that are intoxicated following a night of consuming alcoholic beverages are typically released the next day after a period of time during which the motorist can "sober up." Under the new provisions, it seems that someone who is merely accused of driving with the presence of a controlled substance in his or her system might be required to forego driving privileges for nearly a month or more.
Our local police are only trained to detect signs of intoxication. Police cannot determine whether a driver has a mere presence of a controlled substance in his or her bloodstream without test results from a forensic laboratory. Blood tests take two to three months to be analyzed by the state's lab in Lansing. In the interim, will local police permit the accused to drive following an arrest, despite the existence of "probable cause" to believe that the person is somehow still drunk? Will law enforcement be held liable for releasing these purportedly dangerous drivers onto our highways?
By adopting this new statue prohibiting trace elements of certain drugs in a motorist's blood or urine, the state has embraced a flawed, misguided system incapable of effective enforcement. This new law is fueled by the campaign to end drunk driving and guided by our desire to be "drug-free," but it is motivated by financial interests and threatens our liberties. Predicably, the new legislation will be targeted against ethnic minorities, younger motorists, and anyone who might match a drug courier profile or otherwise appear unwilling to provide urine samples on command. The new statute is a bad policy that was passed unanimously without much debate in the package of revised drunk driving laws purportedly to save federal highway dollars for Michigan's roads. Ultimately, it will cost taxpayers far more in its enforcement and legal challenges, and our roadways will not be any safer.
-----------------------------------------------------
Obviously, a lot has changed in over a decade since this law was passed. For one thing, we now have the Medical Marijuana Act, and a lot of people are driving around with small amounts of marijuana in their system.
The central focus of the OWPD law over the last decade has been, and continues to be, what constitutes "any amount" of marijuana? Prosecutors encouraged an interpretation that "any amount" meant anything that could be measured. But, unfortunately, prosecutors are notoriously naive when it comes to science. They scoffed at my analysis, and, sure enough, the prosecutors got their wish in People v Derror, 475 Mich. 316 (2006), when the Michigan Supreme Court agreed with prosecutors. The Derror decision held that any measurable amount of marijuana metabolite was enough to fit the "any amount" provision of the OWPD statute. Metabolites may remain in the body for several months, so this decision was absurd. This was a purely political decision, based almost entirely upon the composition of the court at that time. It ignored science, and it received nationwide attention for all the wrong reasons. It was essentially judicial activism from the conservative side of the bench. Read more on that issue in our article "Dice-Loading" The Legislative Intent.
Fallout from the Derror decision reached a pinnacle when a motorist was driving down a darkened five lane road one rainy night, striking and killing a highly intoxicated man who walking with his back to traffic in the middle of the road. The driver of that motor vehicle was convicted at trial after the judge ruled that the driver could not introduce the fact that the pedestrian was intoxicated because the driver could not argue that the pedestrian's intoxication was the proximate cause of the accident. Blood testing revealed trace elements of marijuana metabolite, which was introduced as evidence pursuant to the Derror decision. Following the motorist's conviction, he pursued an appeal, which eventually made its way to the Michigan Supreme Court, resulting in People v Feezel, 486 Mich. 184 (2010), which held that marijuana metabolite could not serve as the basis for finding a violation of the OWPD statute.
The practical impact of Feezel was that blood tests that revealed only metabolite could not be used to convict a motorist of driving while intoxicated. Although Feezel does not address the issue, the ramifications of its ruling also mean that urine testing cannot be used as evidence in an OWPD case. The Michigan State Police Toxicology Unit agree with my analysis regarding urine testing, and they have informed police departments around the state to seek blood in OWPD cases. Nonetheless, we see a few urine cases crop up from time to time.
Prosecutors responded to the Feezel decision by pushing their ARIDE and DRE programs. ARIDE stands for "Advanced Roadside Impaired Driving Enforcement," and it is an introduction to drugged driving. Nationwide, this program is designed to train officers when to contact a more experienced officer to conduct an investigation, but Michigan has insisted on using this program to introduce junk science into the courtroom. The DRE program, which is far more intense, has been recently introduced here in Michigan. DRE stands for "Drug Recognition Expert," and I have lectured extensively on this new voodoo science.
Frankly, I do not believe that the Feezel decision fixed all the problems. In small amounts, active THC in a person's body does not necessarily mean that a person has smoked marijuana within a relevant time-frame. Even though THC is a very unstable chemical that tends to break down quickly in the human body, small amounts of active THC have been detected in blood for upwards of 14 days after heavy smokers stopped using marijuana.
One final significant development: It turns out that I was right a decade ago! Even though the state lab persistently claimed that they could accurately measure trace amounts of THC and metabolite in blood, returning results where "1 ng/mL" was used to convict a motorist, these claims have been exposed as half-truths and quibbles. It turns out that the state lab has a very difficult time measuring THC using GC/MS, and they have an uncertainty budget of a whopping forty percent! This means that any result of 5ng/mL or less falls within the lab's level of uncertainty.