Michigan Criminal Defense Law Blog

OWI and OUIL are acronyms describing two different ways a prosecutor can prove the crime of drunk driving in Michigan.  The acronym OWI refers to the more general crime, while OUIL describes a specific way to prove a specific crime which is that of drunk driving.  In other words, the acronym OUIL relates to a certain kind of proof at trial. Either way, both OWI and OUIL ultimately relate to the same crime.

This crime can be found in Michigan law at MCL 257.625, which sets forth all the different ways intoxicated driving can be proved.  The general term for intoxicated driving is OWI which stands for operating while intoxicated.  The crime of OWI really consists of several different crimes depending on the type of intoxicating substance present.  Thus, OWI can describe intoxicated driving crimes involving alcohol, prescription drugs, and non-prescriptions drugs like cocaine or even marijuana.

When it comes to intoxication by alcohol, the acronym OUIL applies to one of the two ways the crime of OWI can be proved in court.  This stands for Operating Under the Influence of Liquor.  To prove this crime, the prosecutor will often use what is called the observation evidence.  This usually relates to all the evidence other than the breath or blood test.  Observation evidence is usually broken down into the parts, and these come from the three phases of the drunk driving investigation.

It is an undeniable truth that police officers have a much more difficult time detecting stoned drivers when compared with the relatively easy task of detecting drunk drivers. There are many reasons for this and first among them is that marijuana does not impact driving anywhere near the way alcohol does. It is also debatable whether marijuana impairs a driver’s ability to safely operate a motor vehicle at all.  Debate aside, with the legalization of recreational marijuana in Michigan there is little doubt that police will begin arresting more stoned drivers.  Which begs the question; how will the police know you’re too stoned to drive?

At the beginning, the stoned-driving investigation will closely mimic a drunk driving investigation.  A driver will be stopped for some identifiable violation of the traffic code, such as driving too slowly, disobeying traffic signals and so on. When the police first approach the driver, they will be looking for any signs or symptoms of marijuana use.  Like alcohol, the most tell-tale sign will be the odor of marijuana, which is obviously much more difficult to detect in the case of consumables.  The police will be looking for pupil dilation and eyes that otherwise appear stoned.  Additionally, the police will be looking for packaging or paraphernalia commonly associated with marijuana use.  If marijuana use is suspected, the police will seek an admission to the prior use of marijuana.  The next step may be either to request a preliminary breath test and/or to request the driver’s participation in the administration of field sobriety tests.  The purpose of all this is to determine if in fact the person is impaired and to rule out the possibility that alcohol is causing the impairment.

After a driver blows all zeros (or very low) on the alcohol preliminary breath test, the police officer will need to decide whether to call in a DRE (Drug Recognition Expert). The police officer will also need to decide if they have enough evidence to arrest the driver at this point, or if the DRE needs to continue the investigation at the roadside. In preparation for all of this, in 2016 Michigan expanded its definition of the Drug Recognition Expert.

Recreational marijuana will soon be legal in Michigan.  Known as proposal one, which passed by a large margin, marijuana won’t officially become “legal” until 10 days after the election is certified by the state board of Canvassers. This is expected to happen sometime in early December.

However, the enabling legislation has not yet been enacted, and because of this, the legalization of marijuana in Michigan raises a whole host of legal and criminal law issues.  For example, once the election result for proposal one is certified, will it then be legal to operate a motor vehicle with marijuana in your system?  What is the legal limit for marijuana?  If you operate below this legal limit, are you immune from prosecution for operating under the influence of marijuana?  Each of these questions is addressed below.

Is it now legal in Michigan to operate a motor vehicle with marijuana in your system?

Now that the recreational use of marijuana is lawful in Michigan many area police departments are getting ready to identify and arrest more THC impaired drivers.  For example, the Grand Rapids Police Department has requested federal funding that will allow them to send additional officers for DRE training.  According to Fox17 West Michigan, Grand Rapids currently has 5 DRE trained officers, which is a small fraction of the 130 officers trained throughout Michigan.

The new law presents many problems for law enforcement, including the detection and arrest of marijuana-impaired drivers.  The tools used by the police for alcohol enforcement, such as roadside or preliminary breath tests and Standardized Field Sobriety Tests simply don’t exist specifically for marijuana.  This leaves the police at something of a disadvantage when it comes to the enforcement of laws aimed against intoxicated driving, including those high on marijuana.

The DRE program has been around for decades, but Michigan’s police officers only started getting training as Drug Recognition Experts a few years ago.  Now that marijuana use is legal DRE training seems like more of a necessity.  This is because the DRE program claims to allow officers to determine the category of the drug a driver has consumed and allows the officer to correlate that drug with impairment.