Michigan Criminal Defense Lawyer Blog

What’s the Difference Between OWI and OUIL?

Published on: December 27, 2018 | by Patrick Barone

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.

Michigan Recreational Marijuana Users Advised to Avoid Firearm Possession

Published on: December 10, 2018 | by Patrick Barone

Now that Michigan has legalized the recreational use of marijuana, many citizens want to know how they can possess and use recreational marijuana without running afoul of the law. It will take many years for the legislators and courts to sort this all out, and in the meanwhile, recreational users may unknowingly place themselves at risk for criminal prosecution or other adverse legal consequences. One area that is particularly rife with such risks is the combination of marijuana and firearms.

An example of this this risk relates to the possession or use of marijuana while also being in the possession of a firearm. While this article focuses on State law there is also an interplay between Federal law and marijuana, and this interplay is the subject of a different article on this site.

As it relates to State law, Michigan gun owners should know that it is unlawful in Michigan to possess a firearm under the influence of alcohol, drugs or a combination of alcohol and drugs. There are two separate laws that apply to this scenario, one of which appears in the criminal code and one of which appears in the firearms statute. Both contain provisions applicable to the possession of a firearm under the influence of marijuana, but there are important differences as well.

DUI Defendant’s Constitutional Right to Confront Chemical Test Remains Clear as Mud

Published on: November 30, 2018 | by Patrick Barone

In the past decade, the United States Supreme Court has issued several opinions addressing a DUI defendant’s right to confront a breath or blood test used by the prosecution to prove intoxication at trial. In legal terms, the word “confront” essentially means cross-examine. An example of this confrontation right in the context of a drunk driving case would be the right to cross-examine the police officer who administered a breath test, or the forensic analyst who prepared a blood sample for testing. This issue came before the USSC again in 2018. The name of the case is Stuart v. Alabama. Unfortunately, the USSC declined the opportunity to clarify this issue, and by order dated November 19, 2018, denied the defendant’s petition for review (certiorari).

However, there was a dissenting opinion written by Justice Gorsuch and joined by Justice Sotomayor. This opinion contains some interesting information. Perhaps picking up the cross-examination baton laid down by Justice Scalia, Justice Gorsuch refers to cross-examination as “the greatest legal engine ever invented for the discovery of truth.” Furthermore, that:

Cross-examination is an essential guard against such mischief and mistake and the risk of false convictions. Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process.

Can You Have a CPL and Use Marijuana in Michigan?

Published on: November 28, 2018 | by Patrick Barone

No, according to Federal law, you are not allowed to both use medical or recreational marijuana and have a Michigan Concealed Pistol License (CPL). This is due to a conflict in state and federal law.

Michigan is not the only state facing this dilemma. For example, a man in Pennsylvania has filed a lawsuit seeking clarity regarding gun ownership rights. According to the HuffPost,

A medical marijuana prescriber and patient is challenging President Donald Trump’s administration over a federal statute barring cannabis users from purchasing or owning firearms, even when they take the drug legally pursuant to state law.

In a Drunk Driving Investigation Must Police Read Me My Rights?

Published on: November 26, 2018 | by Patrick Barone

Yes, when you’ve been stopped for drunk driving the police must read you your rights. In fact, the police may be required to read to you three separate sets of rights; one related to the roadside or preliminary breath test (PBT), the second set of rights related to the second breath test at the station, and under certain circumstances, the police must read to you your Miranda rights prior to questioning you. Each of these sets of rights is discussed below.

Preliminary Test Rights.

According to the Michigan State Police Preliminary Breath Test Manual, the following rights should be read to a person before asking them to submit to a roadside breath test:

Michigan law requires you to submit to a preliminary breath test upon request of a peace officer. Your refusal to submit as requested shall result in your being charged with a civil infraction with a penalty of up to a $100.00 fine.

How Will Police Know I’m too Stoned to Drive?

Published on: November 23, 2018 | by Patrick Barone

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.

What is Legal Limit for Marijuana in Michigan?

Published on: November 22, 2018 | by Patrick Barone

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?

Grand Rapids Getting Ready to Arrest More Marijuana Impaired Drivers

Published on: November 21, 2018 | by Patrick Barone

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.

The Interplay Between Legalized Marijuana and Intoxicated Driving

Published on: November 7, 2018 | by Patrick Barone

Now that Michigan’s voters have approved the legal use of recreational marijuana, how will this impact Michigan’s laws against intoxicated driving? The answer is – not very much.

As of the date of this article, it is unlawful in Michigan to drive under the influence of or while impaired by alcohol, drugs, or a combination of alcohol or drugs. This includes marijuana. However, the current state of the law in Michigan is that there are two different standards that apply to marijuana, one for medical marijuana users and one for everyone else. For a person with a medical marijuana card who is otherwise using medical marijuana legally, the police must prove that the marijuana substantially lessened their ability to operate the motor vehicle. For everyone else, zero tolerance applies, and simply driving with any amount of marijuana in your system is enough to violate the intoxicated driving laws.

Because marijuana has just become legal to use recreationally in Michigan, it will take some time for the intoxicated driving laws to catch up to this new reality. When they eventually do catch up, two things are likely to happen. First, marijuana will no longer be classified as a zero tolerance “any amount” drug. This zero-tolerance standard will be replaced by a legal limit for marijuana. Other states have set arbitrary amounts, such as 5 ng of THC (marijuana’s active ingredient), so the first thing Michigan’s lawmakers will need to decide is this arbitrary legal cut-off. Next, Michigan’s laws of intoxicated driving, found in the Michigan traffic code’s chapter 257 will need to be amended. Until both things happen, Michigan’s recreational marijuana users will be in a sort of legal limbo while trial courts try to decide the appropriate legal standard for judges and juries to apply in the review of these cases.

Use of Legalized Marijuana While on Probation in Michigan

Published on: November 7, 2018 | by Patrick Barone

Now that Michigan’s voters have spoken, and we are now among a handful of states that allow the legalized use of marijuana, how will this change in the law impact the terms and conditions of probation? The answer is, it depends on the judge!

When a judge determines the conditions of probation for any crime, he or she is governed by Michigan Compiled Laws section 771.3, which sets forth all the mandatory conditions of probation. This law does not specifically state that a judge can order a person to stop using drugs or alcohol, but there is a catch-all provision, and this indicates that a judge may impose any other lawful condition of probation as the circumstances of the case require or warrant or as in his/her judgment are proper. Thus, it is very common for judges to order people to stop using alcohol, illegal drug or even legal drugs without a prescription. For those judges who believe that the circumstances of a case require the non-use of recreational marijuana, all the judge need do is order it as a condition of probation.

This issue has already been litigated as it relates to medical marijuana, and Michigan’s courts have found that the conditions of probation can include the non-use of lawfully prescribed medical marijuana. There seems to be no good reason why the same would not be true of recreational marijuana.

Michigan Criminal Defense Law Blog

Preliminary Test Rights.