Many of our clients think that intoxicated or impaired driving charges only apply to alcohol. In fact, though, you’re guilty of a crime if you drive with “any amount” of certain controlled substances in your system. This is often referred to as operating with the presence of drugs or OWPD. In general, the penalty is the same as a typical drunk driving charge.
There are three elements to OWPD, all of which the prosecution must prove beyond a reasonable doubt:
Controlled substances are categorized as “Schedule I” when they have no accepted medical use and a high potential for abuse. Common examples are heroin, LSD, and ecstasy (MDMA).
A woman is driving home late at night from a club after consuming a large amount of cocaine. A police officer pulls her over for improper lane use. When the officer makes contact with the woman at the driver’s side window, he notices that her pupils are dilated, and she seems fidgety. The officer asks if she’s consumed any substances, and the woman says no. The officer doesn’t believe her. He has her get out of the car, and he administers field sobriety tests. The woman performs poorly. The officer arrests her and obtains a search warrant for her blood. The blood test reveals the presence of cocaine in her system.
During a raucous weekend with some old college friends, a man does a few lines of cocaine. Driving home a day later, the man is pulled over for speeding. The police officer asks if the driver has consumed any illicit substances. Not wanting to lie, the man admits that he consumed cocaine a day earlier. The officer arrests the man for OWPD and obtains a search warrant for his blood. The blood test shows the presence of cocaine.
Other similar or related offenses include:
Two common defenses in OWPD cases are (1) unreliability of a test result, and (2) lack of presence of a controlled substance.
Take the woman driving home from the club. At first blush, it may seem like a hopeless case. But let’s add some details. Suppose that for the blood test, the officer took the woman to a hospital, where the woman’s blood was drawn by an unlicensed nursing assistant. By law, blood must ordinarily be drawn by a licensed physician or registered nurse for the test result to be admissible. Here, then, the woman will likely be able to get the blood test result thrown out since an unlicensed nursing assistant drew the blood. And because that result was the only direct evidence establishing that the woman had cocaine in her system, the case will likely be dismissed (even though the woman was factually guilty).
Now consider the man whose weekend with his college buddies led to an OWPD arrest. Given his admissions and the results of the blood test, he’s cooked, right? Not necessarily. Suppose that the blood test showed only the presence of a cocaine metabolite. A metabolite is a byproduct created when your body breaks down the controlled substance. Under recent decisions from the Michigan Supreme Court, the metabolite of a controlled substance is generally not considered a “controlled substance” under the law. In other words, “any presence of a controlled substance” does not include metabolites. Here, then, because the man did not have any active cocaine in his system, a motion by a defense attorney should get the case dismissed.
OWPD is a misdemeanor punishable by up to 93 days in jail, a fine of between $100 and $500, community service of up to 360 hours, and vehicle immobilization.
Penalties increase for subsequent convictions. An OWPD conviction within 7 years of a prior impaired driving conviction is a misdemeanor punishable by 5 days to 1 year in jail, a fine of between $200 and $1,000, community service of between 30 and 90 days, vehicle forfeiture, and mandatory vehicle immobilization. Incarceration can be suspended only if you are sentenced to a sobriety court program.
A third OWPD conviction in a person’s lifetime is a felony punishable by at least 30 days in jail and up to 5 years in prison, a fine of between $500 and $5,000, community service of between 60 and 180 days, vehicle forfeiture, and mandatory vehicle immobilization. Incarceration can be suspended only if you are sentenced to a sobriety court program.
Because of the extremely low threshold for OWPD—any presence of a qualifying controlled substance—to have a successful defense, you’ll often need to attack the blood test. To do that, you’ll need a defense attorney who’s knowledgeable about the science behind the test and its weaknesses. With the right strategy, a defense attorney may be able to get your case dismissed or dramatically reduced.
For more information about OWPD and to talk about your case, contact Grabel & Associates at (800) 342-7896.