What Are The Penalties For Operating A Vehicle With Any Amount Of A Schedule 1 Or 2 Controlled Substance In Your Body In Michigan? – MCL 257.625(8)

Most Michigan drivers are aware that if they drive a vehicle poorly while under the influence of alcohol or a controlled substance, you can be charged and convicted with operating while intoxicated or operating while visibly impaired. However, did you know that you can also be charged and convicted with these crimes merely because a Schedule 1 or certain Schedule 2 controlled substance is in your body, EVEN IF there is no bad driving whatsoever? The law does not tolerate operating a vehicle with ANY AMOUNT of illegal drugs in your body and you will be subject to all of the same penalties as someone convicted under any other OWI or OWVI offense.

A person is guilty of operating a motor vehicle with a controlled substance in his or her body if the prosecutor can prove each of the following elements beyond a reasonable doubt (Model Criminal Jury Instruction 15.3a):

• First, that the person was operating a motor vehicle, meaning they had actual physical control of the vehicle. A motor vehicle, defined by MCL 257.19, is “every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks…”. Besides cars and trucks, this definition can include go-carts, snowmobiles and dune buggies if operated upon a highway. If the police arrive and the car is not running, it is possible for the prosecutor to establish circumstantial evidence of operating such as the hood and tires being warm from recent operation.

• Second, that the person was operating the vehicle on a highway or another place open to the public or generally accessible to the motor vehicles. This definition is VERY BROAD and, very recently, the Michigan Supreme Court held that a private driveway was “generally accessible to motor vehicles” for the purpose of sustaining an impaired driving conviction. See People v Rea, 500 Mich 422; 902 NW2d 362 (2017).

• Third, while operating the vehicle, the person had ANY amount of a Schedule 1 or certain Schedule 2 controlled substance in his or her body.

1. A Schedule 1 substance is classified by the Board of Pharmacy as having “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.” MCL 333.7211. Schedule 1 controlled substances include, but are not limited to, heroin, marijuana, LSD, peyote, MDMA (“Ecstasy”) and mushrooms. MCL 333.7212.
2. A Schedule 2 substance is classified by the Board of Pharmacy as having “high potential for abuse, … currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions…. [and] the abuse of the substance may lead to severe psychic or physical dependence.” MCL 333.7213. For the purpose of this crime, the only Schedule 2 drugs that result in zero-tolerance are cocaine and its salts, stereoisomers or chemically similar derivatives. MCL 333.7214(a)(iv).

• Fourth, that the person voluntarily decided to operate the vehicle knowing that he or she had consumed or used a Schedule 1 or prohibited Schedule 2 controlled substance. The prosecutor is not required to prove that the individual voluntarily decided to drive knowing that he had any amount of the controlled substance in his body (e.g. showing it was still in the person’s bloodstream), but rather that he or she decided to drive after knowingly ingesting the controlled substance. People v Wilds, unpublished per curiam opinion of the Court of Appeals, issued April 2^nd, 2013 (Docket Bo. 311644). THERE IS NO REQUIREMENT TO SHOW THAT THE PERSON WAS INTOXICATED OR IMPAIRED BY THE CONTROLLED SUBSTANCE.

The penalties for operating a motor vehicle with a controlled substance in his or her body are as follows:

• For a first offense, the penalty is a misdemeanor conviction punishable by:

1. A fine between $100.00 and $500.00
2. Jail sentence up to 93 days.
3. Community service up to 360 hours.
4. Driver’s License is suspended for the first 30 days, then restricted for the following 150 days with no hardship appeal.
5. Possible vehicle immobilization
6. 6 points added to your Michigan driving record
7. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• For a second offense occurring within the last seven years, the penalty is a misdemeanor conviction punishable by:

1. A fine between $200.00 and $1,000.00.
2. Jail sentence not less than 5 days but not more than one year (48 hours must be served consecutively).
3. Community service between 30 days and 90 days.
4. Driver’s License is revoked for at least one year.
5. Possible vehicle immobilization and forfeiture.
6. 6 points added to your Michigan driving record.
7. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• For a third or subsequent offense, the penalty is a felony conviction punishable by:

1. A fine between $500.00 and $5,000.00.
2. Prison sentence between 1 to 5 years OR probation with a jail sentence between 30 days and one year (48 hours must be served consecutively) and community service between 60 days and 180 days.
3. Driver’s License is revoked for at least one year.
4. Vehicle immobilization or forfeiture.
5. 6 points added to your Michigan driving record.
6. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• If the offense resulted in the serious impairment of a body function of another person, contrary to MCL 257.625(5)(a), the penalty is a felony conviction punishable by:

1. A fine between $1,000.00 and $5,000.00.
2. Imprisonment up to 5 years
3. Driver’s License is revoked for at least one year.
4. Vehicle immobilization or forfeiture.
5. 6 points added to your Michigan driving record.
6. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• If the offense resulted in the death of another person, contrary to MCL 257.625(4)(a), the penalty is a felony conviction punishable by:

1. A fine between $2,500.00 and $10,000.00.
2. Imprisonment up to 15 years
3. Driver’s License is revoked for at least one year.
4. Vehicle immobilization or forfeiture.
5. 6 points added to your Michigan driving record.
6. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

• If the offense resulted in the death of a police officer, firefighter or other emergency personnel, contrary to MCL 257.625(4)(c), the penalty is a felony conviction punishable by:

1. A fine between $2,500.00 and $10,000.00.
2. Imprisonment up to 20 years
3. Driver’s License is revoked for at least one year.
4. Vehicle immobilization or forfeiture.
5. 6 points added to your Michigan driving record.
6. Driver Responsibility Fee of $1,000.00 for two consecutive years (will be eliminated and forgiven by October 1^st, 2018).

Despite the enactment of the Michigan Medical Marihuana Act (MMMA), marijuana is still a Schedule 1 controlled substance in this state. However, the MMMA provides that “[a] qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner… for the medical use of marihuana in accordance with this act.” MCL 333.26424(a). The Michigan Supreme Court determined that the MMMA supersedes MCL 257.625(8) to the extent that a registered medical marijuana patient is immune from prosecution merely from operating a vehicle with marijuana in his or her system. People v Koon, 494 Mich 1; 832 NW2d 724 (2013). However, the MMMA does not protect registered medical marijuana patient who drive a vehicle while “under the influence” and may be subject to prosecution for operating while intoxicated or operating while visibly impaired.

If you or a loved one is charged with operating a motor vehicle with a Schedule 1 or Schedule 2 controlled substance in his or her body, you need the assistance of an experienced criminal defense attorney to help protect you against the substantial fines and costs, license sanctions and possible jail time that can result from conviction. Do not deal with the prosecutor and judge alone, for they will have little empathy towards you regarding this zero-tolerance offense. Only a skilled lawyer can ensure you are treated fairly under the law. When you have to go to court regarding any criminal charge, do not hesitate to call Kershaw, Vititoe & Jedinak PLC to begin your best defense today.