Josh Covert

In The News

Saturday, December 8, 2012


By Michael Nichols
Categories: Josh Covert

On November 29, 2012 the Michigan Senate passed SB-353 which if passed by the House will amend the current drunk driving statute (MCLA 257.625) to include “intoxicating substances”.  SB-353 adds “intoxicating substances” to the list that already includes alcohol and controlled substances. According to the proposed bill, “intoxicating substance” refers to any substance or preparation listed as a drug in The Official United States Pharmacopeia, The Official Homeopathic Pharmacopoeia of the United States or The Official National Formulary.  The proposed legislation also defines an intoxicating substance as “a substance, other than food, that is used in a manner or for a purpose for which it was not intended, and that may result in a condition of intoxication.”  The bill is now before the House and is expected to pass in the near future.

The problems with SB-353 are profound.  First, it is important to note that the three publications referred to in SB-353 are not available to the public without considerable cost.  For example, in order to have online access to The Official Homeopathic Pharmacopeia Of The United States one must register and pay $100 for one day access or $1,000 for one year access.    Print versions of the The Official Homeopathic Pharmacopoeia of the United States and The Official National Formulary are availale for $850.  Without access to the referenced materials citizens will be unable to determine if the substance they ingest may place them within the constraints of MCLA 257.625.  The referenced materials also change frequently as new discoveries are made and the proposed statute includes any supplements to the referenced materials. “The use of specific publications to define a criminal offense creates a serious problem when citizens do not have access to the publications and when the publications change frequently.  It leaves the drivers of Michigan in between a rock and a hard spot.  Either they spend a significant amount of money each year to have access to the publications or they roll the dice and risk being charged with a criminal offense” says attorney Joshua M. Covert.

The proposed statute also is contradictory when it defines an intoxicating substance as “a substance, other than food, that is used in a manner or for a purpose for which it is not intended, and that may result in a condition of intoxication”.  The use of the word “may” presents problems when read with MCLA 257.625(1)(a) which defines “operating while intoxicated” to mean that “a person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, and other intoxicating substance.”  When the two proposed sections of MCLA 257.625 are read together it indicates that if you consume a substance that might result in intoxication you are technically under the influence.  “It is important to note that the prosecution will not be required to prove that your ability to drive was noticeably affected if you are charged with operating while intoxicated as long as the prosecution can prove that you took a substance other than food that may result in a condition of intoxication” says attorney Joshua M. Covert.

Intoxication is not directly defined in the drunk driving statute but intoxication can be defined as “stimulation, excitement, or stupefaction cause by a chemical substance” (Dorland’s Medical Dictionary for Health Consumers, 2007). Most people would be surprised to find out that many common over the counter medications may result in a condition of intoxication. Also, many products that we buy at grocery and convenience stores contain substances that may result in intoxication.  For instance Caffeine is a drug, is considered a stimulant and can also cause excitement.

It is important to also analyze the term “food” as it is used in the proposed statute. “Food” is essentially anything consumed that offers a nutritional benefit or nourishment.  This lessens the impact of the proposed statute somewhat but it stills leave the citizens of Michigan wondering about herbal supplements or vitamins and whether or not they will be considered “food”.

“The proposed statute really opens the door for law enforcement officers to broaden the net they use to catch intoxicated drivers” says attorney Joshua M. Covert.  Covert continues “If this statute becomes law the people of the state of Michigan can assuredly expect to see more arrests made under the drunk driving statute”.   If you have been charged with operating while intoxicated or any of the other crimes under MCLA 257.625, call the Nichols law firm today and discuss your case with lawyers who understand both the science and the statutes.  Call 517-432-5000

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Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.