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Friday, January 4, 2013
By Michael Nichols
Categories: Drunk-Driving
Lt. Governor Brian Calley signed dozens of bills on the first business day of the new year. The bills included Senate Bill 353 (SB 353), which makes it illegal to operate a motor vehicle with "any intoxicating substance" in your system.
See: http://www.michigan.gov/snyder/0,4668,7-277-57577_57657-292067--,00.html
Mike Nichols, a founding member and Secretary of the Michigan Association of OWI Attorneys, an adjunct professor of forensic evidence and DUI Law and Practice at Thomas M. Cooley Law School and published author, says that "lawmakers are going the wrong way."
Nichols says "this new law is so subjective, it allows the police to make an arrest, a prosecutor to start a case and sets up the Michigan State Police lab to convict innocent people.
A pdf with the full text of the bill is at: http://www.legislature.mi.gov/documents/2011-2012/billengrossed/Senate/pdf/2011-SEBS-0353.pdf
Nichols says that instead of casting a wider and more subjective net across the public, the legislature and governor should be making the law more consistent with modern forensic science and its limitations.
"The fact of the matter is that gas chromatography/mass spectrometry is an accepted scientific method and what is used at the Michigan State Police lab, but it has its limits. When you give a lab analyst something to identify and say 'here is the suspect's blood,' you are telling the analyst that something criminal is in that blood. When the instruments produce an objective report based on a detector response that produces peaks and patterns -- who is to say that the instrument identified an intoxicating substance at an intoxicating level? Yet, it sounds so powerful in court for an analyst to say in court that it did." Nichols adds: "the lab is already set up to fail by the legal standard of 'any amount' of a schedule 1 substance like marijuana as the legal limit - which is impossible to distinguish from instrument noise unless there is an established cutoff based on the known capabilities of the instrumentation and the human involvement. Already we are prosecuting and convicting people who may not be impaired by marijuana - including medical marijuana patients - based on poorly written legal language. Let's make it better - not worse."
Nichols already obtained an order from a district judge agreeing that questions raised about the lab's lack of demonstrating scientific reliability in a marijuana case were not answered. Nichols says "add to these concerns the push by the Michigan State Police to train officers on Drug Recognition Evaluation and you have a recipe for putting your mother, sister, father or brother in jail for going to the grocery store in a car with broken taillights and admitting that they take a certain medication. Where does this stop in terms of the power we are giving the state to convict us for life with serious crimes?"
For the attorney who knows the law, has help found the Michigan Association of OWI Attorneys, and teaches on the subject, call Mike Nichols at (517) 432-9000.