Michigan Drugged Driving

In Michigan, a person is guilty of DUI if (1) he or she operates a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, a controlled substance, or a combination of alcoholic liquor and a controlled substance, (2) the owner of a vehicle permits the vehicle to be operated by a person whose ability to operate the motor vehicle is visibly impaired due a controlled substance, or a combination of alcohol and a controlled substance, OR (3) the person has in his or her body any amount of a schedule I controlled substance*. Mich. Comp. Laws Ann. §§ 257.625(1)(a), (8) (West 2010).

*NOTE: The Michigan Supreme Court has found that inert metabolites of marijuana do not constitute schedule I controlled substances. The court found that natural byproducts created by body during break down of THC were not derivative of marijuana. Inert metabolites do not constitute schedule I controlled substance, in part because they do have any known pharmacological effect, relate to level of THC-related impairment, and do not have potential for abuse and dependence. People v. Feezel, 783 N.W.2d 67(2010).

The Michigan Supreme Court has separately determined that the protections of the state’s medical marijuana act trump the state’s zero tolerance per se law for the presence of THC in blood. This means that qualified patients may not be charged under the state’s zero tolerance per se DUI statute. Rather, the state would have to show prrof of impairment in order to gain a DUI drug conviction. This zero tolerant standard does apply to non-patients. People v. Koon, 2013.

Implied Consent

• A person who operates a vehicle upon a public highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in his or her blood or urine. Mich. Comp. Laws Ann. § 257.625c(1) (2010).
• If a person refuses the request of a peace officer to submit to a chemical test, a test shall not be given without a court order, but the officer may seek to obtain the court order. Id. § 257.625d(1).
• A person’s refusal to submit to a chemical test is admissible in a criminal prosecution for a crime only to show that a test was offered to the defendant, but not as evidence in determining the defendant’s innocence or guilt. The jury shall be instructed accordingly. Id. § 257.625a(9).
• Accused has the right to demand that a person of his or her own choosing administer the chemical tests, and accused is responsible for obtaining a chemical analysis of a test sample obtained at his or her own request. Id. § 257.625a(6)(b).
• Accused is allowed a phone call to consult attorney about taking chemical tests after arrest. Hall v. Secretary of State,231 N.W.2d 396(1975).

Penalties

• First offense – One or more of the following – community service for not more than 360 hours; imprisonment for not more than 93 days; fine of not more than $300. Mich. Comp. Laws Ann. § 257.625(9)(a).
• Second offense (w/i 7 years) – fine of not less than $200 or more than $1,000; one or more of the following – imprisonment for not less than 5 days or more than 1 year, community service for not less than 30 days nor more than 90 days. Id. § 257.625(9)(b).
• Third and subsequent offense (w/i 7 years) felony – fine of not less than $500 or more than $5,000; either of the following – imprisonment for not less than 1 year or more than 5 years; probation with imprisonment for not less than 30 days or more than 1 year with community service for at least 60 days, but less than 180 days. Id. § 257.625(9)(c).

Sobriety Checkpoints

In Michigan, sobriety checkpoints are deemed illegal under state Constitution.

Upon remand from the U.S. Supreme court, the Michigan Supreme court found that Michigan’s state constitution did not permit sobriety checkpoints in Sitz v. Mich. Dept. of State Police, 506 N.W.2d 209 (Mich. 1993).

Case Law

People v. Koon (2013) — “The MMMA [Michigan Medical Marihuana Act] does not define what it means to be ‘under the influence,’ but the phrase clearly contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person. Thus, the MMMA’s protections extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana. The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with MCL 257.625(8) [the state’s zero tolerance per se DUI law], which prohibits a person from driving with any amount of marijuana in her or system.”

People v. Feezel, 783 N.W.2d 67(2010) — The Michigan Supreme Court has found that inert metabolites of marijuana do not constitute schedule I controlled substances. The court found that natural byproducts created by body during break down of THC were not derivative of marijuana. Inert metabolites do not constitute schedule I controlled substance, in part because they do not have any known pharmacological effect, relate to level of THC-related impairment, and do not have potential for abuse and dependence.

People v. Mayhew, 600 N.W.2d 370 (1999) — Accused who was treated at hospital for injuries arising from an automobile accident had no expectation of privacy. A urine test performed on him at hospital which revealed presence of THC was admissible, despite objections based on 4th amendment protections.