Traffic Safety Legal Update

Presented by: Kenneth Stecker July 2013

Pharmageddon?

• 2011 –

4.2 Billion

prescriptions filled: – #1 - Hydrocodone (Vicodin) - 131.2 million – #11 - Alprazolam (Xanax) - 46.3 million – #15 - Zolpidem (Ambien) – 38 million – #17 - Sertraline (Zoloft) - 35.7 million – #19 - Citalopram (Celexa) - 32.1 million – #21 – Oxycodone (Oxycontin) – 31 million

Most Common Drugs at the MSP Laboratory

• • • • • • • • • • • • • • •

Drug % of Cases THC

Alprazolam Hydrocodone Cocaine Morphine Soma Diazepam Diphenhydramine Codeine Methadone Amphetamine Citalopram Oxycodone Tramadol

56

24 16 10 10 5 4 4 3 10 8 7 6 5

Drug % of Cases

Clonazepam Zolpidem Cyclobenzaprine Methamphetamine 2 Trazodone 2 4 2 2 Fluoxetine Butalbital Phenobarbital Venlafaxine Propoxyphene Sertraline MDMA Fentanyl 2 1 1 1 1 1 <1 <1

Number of Drug Cases Analyzed by MSP

Number of Alcohol Cases Analyzed by MSP

What is a Controlled Substance under Michigan Law?

“Controlled substance” means a drug, substance, or immediate precursor included in schedules 1 through 5. Michigan Complied Law 333.7104(2).

Definition of a Schedule 1 Drug

It is a Schedule 1 drug if the Michigan Board of Pharmacy:

“finds that the substance has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.”

Schedule 1 Drugs

Drugs in this schedule include: • • • • GHB- a general anesthetic and treatment for narcolepsy and alcohol withdrawal with minimal side-effects and controlled action but a limited safe dosage range. It was placed in Schedule I in March 2000 after widespread recreational use led to increased emergency room visits, hospitalizations, and deaths Heroin (diacetylmorphine)- used in some European countries as a potent pain reliever in terminal cancer patients, and as second option, after morphine (it is about twice as potent, by weight, as morphine).

LSD (lysergic acid diethylamide)- a semi-synthetic psychedelic drug famous for its involvement in the counterculture of the 1960s.

Marihuana including the cannabis and its cannabinoids- Pure ( trademark Marinol.

–)-trans-Δ9 tetrahydrocannabinol is also listed in Schedule III for limited uses, under the

Schedule 2 Drugs

A Schedule 2 drug has a: • • • High potential for abuse.

The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.

Abuse of the drug or other substances may lead to severe psychological or physical dependence.

• Schedule 2 drugs include, but are not limited to the following: – Codeine – Hydrocodone – Cocaine – Fentanyl – Morphine

Schedule 3 Drugs

A Schedule 3 drug is defined as: • • • The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.

The drug or other substance has a currently accepted medical use in treatment in the United States.

Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.

• Schedule 3 drugs include, but are not limited to the following: – Ketamine – anabolic steroids – testosterone

Schedule 4 Drugs

A Schedule 4 drug is defined as: • • • The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule III.

The drug or other substance has a currently accepted medical use in treatment in the United States.

Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III.

• Schedule 4 drugs include, but are not limited to the following: – Xanax – Soma – Valium – Ambien

Schedule 5 Drugs

A Schedule 5 drug is defined as: • • • The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV.

The drug or other substance has a currently accepted medical use in treatment in the United States.

Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.

• Schedule 5 drugs include, but are not limited to the following: – cough preparations with less than 200 milligrams of codeine or per 100 milliliters (Robitussin AC)

Michigan Compiled Law 257.625(1) March 31, 2013

(1) A person, whether licensed or not, shall not operate a vehicle upon a 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 if the person is operating while intoxicated. As used in this section, "operating while intoxicated" means any of the following: (a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2018 67 milliliters of urine.

, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per (c) The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

OPERATE WHILE INTOXICATED

“UNDER THE INFLUENCE” Because of drinking alcohol (and/or the use or consumption of a controlled substance) the defendant’s ability to operate a motor vehicle in a normal manner was substantially lessened…. The test is whether, because of drinking alcohol, the defendant’s mental or physical condition was significantly affected and the defendant was no longer able to operate a vehicle in a normal manner. CJI2d 15.3

Cite: (MCL 257.625)(1) Citation Description: OWI “OPERATING WITH AN UNLAWFUL BODILY ALCOHOL LEVEL” To prove the defendant operated while intoxicated the prosecutor must prove beyond a reasonable doubt that the defendant operated the vehicle with a bodily alcohol level of .08 grams or more per 100 milliliters of blood/210 liters of breath/67 milliliters of urine. CJI2d 15.3 *Requires a legally admissible chemical test Blood or Datamaster or New DMT Cite: (MCL 257.625)(1) Citation Description: OWI

Michigan Compiled Law 257.625(8) Operating Under the Influence of Drugs (OUID) Per Se

• A person, whether licensed or not, shall not operate a vehicle upon a highway…within this state if the person has in his or her body public health code.

any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code,…or a rule promulgated under that section, or of a controlled substance described in section 7214(a)(iv) of the

OPERATING WITH THE PRESENCE OF SCHEDULE 1, OR COCAINE

• Requires evidence of specified substance in the blood • This will require a blood draw • Does not require evidence of “bad driving” • Marihuana is a Schedule 1 Drug • Cocaine is added by reference

People v Koon,

No. 145259 (Mich. Sup.

Ct., May 21, 2013) • The Michigan Supreme Court ruled that “The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marihuana in his or her system but is not otherwise under the influence of marihuana inescapably conflicts with MCL 257.625(8), which prohibits a person from driving with any amount of marihuana in her or system.” • “Under the MMMA, all other acts and parts of acts inconsistent with the MMMA do not apply to the medical use of marihuana. Consequently, MCL 257.625(8) does not apply to the medical use of marihuana.” • Therefore the Michigan Court held that the “Court of Appeals incorrectly concluded that defendant could be convicted under MCL 257.625(8) without proof that he had acted in violation of the MMMA by operating a motor vehicle while under the influence of marihuana.”

People v Koon,

No. 145259 (Mich. Sup. Ct., May 21, 2013) • The Supreme Court indicated in its opinion, “As the Legislature contemplates amendments to the MMMA, and to the extent it wishes to clarify the specific circumstances under which a registered patient is per ‘under the influence’ of marihuana, it might consider adopting a ‘legal limit,’ like that applicable to alcohol, establishing when a registered patient is outside the MMMA’s protection.” • The Supreme Court mentioned Washington’s legal limit of 5 ng/ml as an example.

People v Feezel,

No. 138031 (Mich. Sup. Ct., June 8, 2010) The Michigan Supreme Court ruled that the presence of 11-Carboxy-THC (“TCOOH”) is not a Schedule 1 drug, and therefore, not a violation of MCL 257.625(8).

“Intoxicating Substance”-March 31, 2013

 “Intoxicating Substance” is defined as any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance, that is either of the following: i. Recognized as a drug in any of the following publications or their supplements: The official U.S. Pharmacopoeia, the official Homeopathic Pharmacopoeia of the USA, or the official national formulary ii. A substance, other than food taken into a person’s body. This would include, but not be limited to, vapors or fumes used in a manner or for a purpose for which it was not intended, and that may result in a condition of intoxication.

Some Drugs that now are covered

• • • • • • • • • • • • • • • • • • • • • Amitriptyline – Elavil, prescription antidepressant Buspirone – Buspar, prescription antianxiety drug Carbamazepine – Tegretol, prescription anticonvulsant Citalopram – Celexa, prescription antidepressant Clomipramine – Anafranil, prescription antidepressant Cyclobenzaprine – Flexeril, prescription skeletal muscle relaxant Desipramine – Norpramin, prescription antidepressant Dextromethorphan – Coracidin, Robitussin, over the counter antitussive Difluoroethane – Dust Off, over the counter dust remover commonly used for huffing Diphenhydramine – Benadryl, over the counter antihistamine Doxepin – Adapin, prescription antidepressant Ephedrine – Quadrinal, over the counter stimulant Fluoxetine – Prozac, prescription antidepressant Gabapentin – Neurontin, prescription anticonvulsant Haloperidol – Haldol, prescription antipsychotic Hydroxyzine – Atarax, prescription antihistamine Imipramine – Tofranil, prescription antidepressant Lamotrigine – Lamactal, prescription anticonvulsant Meclizine – Antivert, prescription antihistamine Metaxalone – Skelaxin, prescription skeletal muscle relaxant Methocarbamol – Robaxin, prescription sedative/muscle relaxant

More Drugs that are covered

• • • • • • • • • • • • • • • • • • Olanzapine – Zyprexa, prescription antipsychotic Orphenadrine – Norflex, prescription sedative/anticholinergic Oxcarbazepine – Trileptal, prescription anticonvulsant Paroxetine – Paxil, prescription antidepressant Phenazepam – Fenazepam, sedative/hypnotic prescribed primarily in Russia (no legitimate medical use in US) Phenytoin – Dilantin, prescription anticonvulsant Promethazine – Phenergan, prescription antihistamine/sedative Propofol – Diprivan, sedative/hypnotic used as anesthetic in surgical procedures Propranolol – Inderal, prescription antihypertensive/antiarrhythmic Pseudoephedrine – Sudafed, over the counter nasal decongestant Quetiapine – Seroquel, prescription antipsychotic Sertraline – Zoloft, prescription antidepressant Toluene – Toluol, commonly abused solvent Topiramate - Topamax, prescription anticonvulsant Tramadol – Ultram, prescription narcotic analgesic Trifluorethane – Endust, over the counter dust remover commonly used for huffing Trazodone – Desyrel, prescription antidepressant Valproic acid – Depakote, prescription anticonvulsant

What is Haldol?

• Haloperidol is an older antipsychotic used in the treatment of schizophrenia and acute psychotic states and delirium.

• Haloperidol may have a negative impact on vigilance or decrease the ability of the patient to drive or operate a machine, particularly initially.

What is Tramadol?

• The drug has a wide range of applications, including treatment of rheumatoid arthritis, restless legs syndrome, motor neurone disease and fibromyalgia. • Drowsiness is reported, although it is less of an issue than for other opioids.

What is the Drug Bible?

Alcohol Impaired Driver

• Bloodshot, watery eyes • Slurred speech • Strong odor of intoxicants • Unable to pick the correct number between 12 and 14 • BAC of .08 or higher

Drug Impaired Driver May be unknown

Alcohol-Related Crashes 2008-2012

Drug-Related Crashes 2008-2001

Marihuana Involved in Fatal Crash

Florida v. Jardines,

No. 11-564 (United States Supreme Court, March 26, 2013)   A police officer may not without a warrant bring a drug sniffing dog to the front of a house, and then use the dog’s alert to establish probable cause to later obtain a search warrant.

The Court held that the use of the dog constituted a search warrant without a warrant, and was itself a violation of the 4 th Amendment.

Chaidez v. United States,

No. 11-820 (United States Supreme Court, February 20, 2013)  The Court’s decision in final on direct review.

Padilla v. Kentucky,

130 S Ct 1473 (2010), holding that the Sixth Amendment requires defense attorneys to inform criminal defendants of the deportation risks of guilty pleas, does not apply retroactively to cases already

Evans v. Michigan

No. 11-1327 (United States Supreme Court, February 20, 2013)  Double jeopardy bars retrial after an acquittal, and after a trial court grants a directed verdict; even if the directed verdict was based on a clear legal error, it still amounts to an acquittal barring retrial (reversing Michigan Supreme Court)

Bailey v. United States,

No. 11-770 (United States Supreme Court, February 19, 2013)   Under Michigan v Summers, Ct 2587 (1981), police executing a search warrant may detain persons found on the premises 452 US 692; 101 S This rule is limited to the immediate vicinity of the premises to be searched and does not apply where a person who was observed leaving the targeted premises was stopped a mile away (whether stop was justified as a Terry stop was not addressed, and left open for remand)

United States v. Jones,

No. 10-1259 (United States Supreme Court, January 23, 2012)  The United States Supreme Court ruled that the Government’s attachment of the Global Positioning-System (GPS) tracking device to the vehicle and its use of the device to monitor the vehicle’s movements constitutes a search under the 4 th Amendment to the United States Constitution.

Berghuis v. Thompkins,

Supreme Court, June 1, 2010) No. 08-1470 (United States    The police need not obtain a waiver before interrogating a suspect but need only inform the suspect of his rights under Miranda and may begin questioning once the suspect acknowledges his rights.

Second, a suspect waives his rights under Miranda once he voluntarily answers questions knowing that he need not do so.

Third, a suspect must unambiguously invoke his right to remain silent if he wishes to invoke his right to cut off questioning -- he cannot do so through ambiguous conduct or by merely remaining silent.

People v Nunley

,

No. 144036 (Michigan Supreme Court, July 12, 2012)   “The Secretary of State’s certificate of mailing at issue in this case is not testimonial because it is generated before the commission of any crime and is a function of the administrative role of Michigan Department of State.” As a result, the SOS certificate of mailing may be admitted into evidence absent accompanying witness testimony without violating the Confrontation Clause of the 5 th Amendment of the United States Constitution.”

People v Ward,

491 Mich 932 (June 6, 2012)  The Fourth Amendment is not implicated when a law enforcement officer merely approaches an individual and directs questions to that person; where a deputy sheriff engaging in conversation with defendant had evidence a car had been recently driven, a strong odor of alcohol came from the vehicle when the driver’s side window was lowered, and the defendant appeared to be intoxicated, the deputy had sufficient basis to detain defendant, who was ultimately charged with OWI

People v White,

No. 144387 (Michigan Supreme Court, February 13, 2013)   The Court held that a statement from a police officer after the defendant invoked his

Miranda

rights that “I’m not asking you questions” but “I hope that the gun is in a place where nobody can get a hold of it,” was not “interrogation” under

Miranda

The officer’s comments were not express questions, and Court finds that they were not the functional equivalent of questioning; defendant’s subsequent statements (“I didn’t even mean for it to happen” and that the shooting was “a complete accident”) were admissible and not a violation of

Miranda

People v Dillon,

No. 303083 (Mich. App., May 15, 2012)     The officer was able to see the air freshener from his patrol car while he was driving behind the defendant.

The air freshener was hanging down, at least, two or three inches below the rearview mirror.

The officer testified that from his perspective the air freshener obstructed defendant’s view.

The Court of Appeals ruled that “The facts and circumstances known to the officer provided reasonable suspicion that a traffic violation was occurring, which justified the traffic stop.”

People v Steele,

No. 296421 (Mich. App., April 14, 2011)  The Court of Appeals ruled “That the defendant’s purchase of a combination of methamphetamine precursors from one store, when considered in totality with the officer’s training and experience with regard to the manufacture of methamphetamine, formed a solid basis upon which the officer had a reasonable suspicion of criminal activity to justify the Terry stop.”

People v Burruss,

18, 2009) No. 281039 (Mich. App., Nov. The dangling ornaments did not create reasonable suspicion for stopping a vehicle properly registered in another state.

Search Warrant Rule

• People have a right against unreasonable searches and seizures • Generally, searches conducted without a search warrant are not presumed to be reasonable.

Arizona v Gant,

556 U.S. 332 (2009)

• No more “Search Incident to Arrest” for motor vehicles • Can search if: – The arrested party has access to the vehicle at the time of the search – If it is reasonable to believe that there is evidence of the crime at hand in the vehicle • An officer making an arrest for unlawful possession of a firearm could reasonably believe that ammunition or additional firearms were in the car.

• Officer making arrest for OWI could reasonably believe evidence of the crime (alcohol) was in the car.

People v Tavernier,

No. 302678 (Mich. App., March 6, 2012)   “Here, the legality of the search was based on the second prong of the the arrest.” Gant holding, that ‘it is reasonable to believe’ the vehicle contains evidence of the offense of The Court held “That the facts known to the police officer at the time of the search, coupled with his common sense, based on his experience, training and the totality of the circumstances, were sufficient for the trial court to conclude that it was reasonable to believe the vehicle might contain evidence of drunk driving, the offense of arrest.”

Can a police officer order occupants out of a car?

• Drivers, yes –

Pennsylvania v. Mimms

, 434 U.S. 106 (1977).

• Passengers, yes –

Maryland v. Wilson

, 519 U.S. 408 (1997).

• Patdown of driver or passenger require reasonable suspicion the person is armed

What Do We Need to Stop a Car?

• Articulable and • Reasonable suspicion.

• “Reasonable suspicion entails something more than an inchoate or unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.”

People v Hyde,

No. 282782 (Mich. App., September 1, 2009)   The Court held that taking the blood sample under the implied consent law was improper due to the defendant’s diabetes.

Therefore, the Court concluded that the defendant’s blood was unconstitutionally seized in violation of the 4 th Amendment, and the test results should be suppressed.

People v Arndt,

No. 300301(Mich App 12/27/11)

• Defendant did not advise the arresting officer that he was a diabetic, although defendant was asked whether he had any medical conditions and whether he was taking any prescribed medications.

• Therefore, the officer had no reason to advise defendant that the implied consent statute did not apply to him.

People v Stephens,

262 Mich App 213 (2004)

People v Solmonson,

261 Mich App 657 (2004) Even if suspect was not “operating” at moment that police observed conduct (sleeping in a parked car), can still be charged and convicted if can prove circumstantially that suspect was operating vehicle while intoxicated prior to the police approach.

People v Haggarty,

No. 305646 (Mich. App., September 27, 2012)  The Court ruled “That although defendant was not operating a motor vehicle at the time the police found him, there was sufficient circumstantial evidence for the arresting officer to have reasonable cause to believe that the defendant had operated a motor vehicle while intoxicated before the police arrived.”

Factors for Circumstantial Evidence

)        The vehicle’s engine was running, the vehicle was in park, the headlights were on, and defendant’s foot was on the brake pedal While defendant did not say he had driven there, the vehicle was registered to him and he did not say that someone else had driven him there Defendant smelled of alcohol and was staggering He failed four field sobriety tests Defendant stated that had been drinking at a bar. Defendant then recanted, saying he had been drinking while at work and that he left at 5:00 P.M

The citizen who called the police stated that defendant had been there “for some time.” In conducting an inventory search, the police discovered several small bottles of vodka, but there did not appear to be enough alcohol missing from the bottles to believe defendant had become intoxicated while sitting in the vehicle at the car wash.

People v Lechleiter,

No. 293577 (Mich. App., December 7, 2010)  The Court ruled that “A person who places a motor vehicle in motion or in a position posing a significant risk of causing a collision, remains responsible for that motor vehicle until such time as that vehicle is put into some position where it poses no risk to other drivers.”

Tongue Piercings

• Indiana Case (NOT BINDING, maybe persuasive):

Guy v. State, 823 N.E.2d 274 (Ind., 2005).

• The Indiana breath test statute says defendant must not “put” anything in his or her mouth for 20 minutes, similar to Michigan’s putting anything in mouth for 15 minutes.

• Also, looked at study by Barry Logan, PhD, and Rodney Gullberg, BS, MPA