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Transcript
Traffic Safety
Legal Update
Presented by:
Kenneth Stecker
July 2013
Pharmageddon?
• 2011 – 4.2 Billion prescriptions filled:
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#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
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Drug
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THC
Alprazolam
Hydrocodone
Cocaine
Morphine
Soma
Diazepam
Diphenhydramine
Codeine
Methadone
Amphetamine
Citalopram
Oxycodone
Tramadol
% of Cases
56
24
16
10
10
10
8
7
6
5
5
4
4
3
Drug
% of Cases
Clonazepam
Zolpidem
Cyclobenzaprine
Methamphetamine
Trazodone
Fluoxetine
Butalbital
Phenobarbital
Venlafaxine
Propoxyphene
Sertraline
MDMA
Fentanyl
4
2
2
2
2
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:
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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 (–)-trans-Δ9tetrahydrocannabinol is also listed in Schedule III for limited uses, under the
trademark Marinol.
Schedule 2 Drugs
A Schedule 2 drug has a:
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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:
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Codeine
Hydrocodone
Cocaine
Fentanyl
Morphine
Schedule 3 Drugs
A Schedule 3 drug is defined as:
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•
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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:
–
–
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Xanax
Soma
Valium
Ambien
Schedule 5 Drugs
A Schedule 5 drug is defined as:
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•
•
•
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, the person has an alcohol content of 0.10
grams or more per 100 milliliters of blood, per 210 liters of breath, or per
67 milliliters of urine.
(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 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
public health code.
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
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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
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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
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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 4th Amendment.
Chaidez v. United States, No. 11-820
(United States Supreme Court, February 20, 2013)
 The Court’s decision in 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
final on direct review.
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, 452 US 692; 101 S
Ct 2587 (1981), police executing a search
warrant may detain persons found on the
premises
 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 GlobalPositioning-System (GPS) tracking device to the
vehicle and its use of the device to monitor the
vehicle’s movements constitutes a search under
the 4th Amendment to the United States
Constitution.
Berghuis v. Thompkins, No. 08-1470 (United States
Supreme Court, June 1, 2010)
 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 5th 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, No. 281039 (Mich. App., Nov.
18, 2009)
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 Gant holding, that ‘it is reasonable to
believe’ the vehicle contains evidence of the offense of
the arrest.”
 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 4th 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