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Saturday, July 8, 2017

What if Tiger Woods Had Been Arrested in Michigan? OWI Prescription Drugs is a Different Case

By Michael Nichols
Categories: Michael J. Nichols

It rung like the town square church bell throughout the sports world: “Tiger Woods arrested for driving while intoxicated.” The first thoughts for many likely centered on Tiger drowning his sorrows over his ailing back, his dwindling skills and the fame that he enjoyed teetering on the brink. Then the reports started surfacing “Woods blew zeros on a breath test;” “Woods had no alcohol in his system” “Tiger not drunk?”

It always troubles me when law enforcement leaks out the name of well-known citizens when they are arrested. This case was no different. He was not even before a judge for his initial appearance (known as the arraignment) and reports of his tragic turn toward the criminal justice system pocked network morning shows like ESPN and ABC. Public misperception was already rampant. It turns out Tiger was not drunk. He was not drunk at all. Unless the breath test produced a false negative, he had not one drop of alcohol in his system at the time of his encounter with law enforcement on the side of the road at 2 am not far from his home in Jupiter, Florida.

Instead, the charges against Tiger are based on a theory that should make every grandmother, grandfather, person with less than perfect health or really any of us cringe. Tiger had back surgery within weeks of his arrest. He is accused of taking prescription medications, becoming intoxicated by them and then driving while under the influence such that his ability to operate his motor vehicle was lessened. Ostensibly, the prescriptions that he took had him “hooked,” is one potential theory of prosecution and he took too many then got behind the wheel while stoned. However, what is really going to be interesting is that Florida, like Michigan, recognizes that there is no medically-accepted scientifically-agreed upon level for prescription medications to create a “presumption” of intoxication such as with alcohol.

The Florida statute cited in the police report is 316.193(1). The media coverage has been brutal, and inaccurate. I read everything from “officer smelled alcohol when Woods was pulled over,” to “Woods became arrogant during traffic stop” and “refused a PBT.” Let us break down the case in order to understand how it may be prosecuted and defended in Michigan. Therefore, we need to bring a motion. So, pretend our “Motion to Change the Facts” is granted and Jupiter, Florida is now Jupiter, Michigan. The first place to start: the police report.

https://assets.documentcloud.org/documents/3760103/New-Woods-Pc-Pdf.pdf

The Florida statute reads somewhat similar to the Michigan statute. It says:

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;

The main difference is that the Florida statute uses “impaired” and “under the influence” interchangeably. In Michigan, the two vary in degree. “Under the influence” is defined as an effect that leaves the person’s ability to operate “substantially lessened.” Impaired leaves the person’s ability to operate “less than an ordinary careful driver” (Mi Standard CJI 2d 15.3; 15.4). The case that gave us the under the influence definition was People v Lambert, 395 Mich 296 (1975).

Was he “under the influence” of or “impaired” by a controlled substance? The first thing that I notice in the police report is that an officer performed a “Drug Recognition Evaluation” (DRE). It does not appear on any copies of the dash cam videos that I have seen. The objective of the DRE is to attempt to literally play doctor. The DRE officer is attempting to determine which (1 or more) category out of 7 categories of drugs are on board the subject. The DRE is designed to do nothing more than justify an arrest and conviction by attempting to correlate observations of the subject’s medical condition with impairment by specific classes of drugs such as amphetamines or central nervous system depressants. The DRE protocol is developed by the National Highway Traffic Safety Administration (NHTSA). The manual, including the 12 step protocol is here in pdf format.

http://www.wsp.wa.gov/breathtest/docs/dre/manuals/preschool_dre/2015_pre_dre/student_pre_oct2015.pdf

The 1st step and the 12th step are the most significant to me: the question by the officer of what medications the person is taking (1st) and the evidential blood draw (12th). NHTSA developed the DRE in an effort to standardize investigations into cases in which a driver is suspected of operating while intoxicated but there is no evidence of alcohol consumption, or at least significant alcohol consumption. The Standardized Field Sobriety Tests (SFSTs) that most people think about from public service announcements were validated for drinking subjects. SFSTs are part of the DRE battery as well. However, no study correlates the impairment by medication with the observations derived from properly administered SFSTs by an officer.

When the dash camera video of one of the officer’s is examined, it seems pretty clear that Tiger Woods is “out of it.” But why? A 6:14 length clip that is available on You Tube is here:

https://youtu.be/ny-K2oUzAeE

In the video the arresting officer applies a test that I have never seen before and has no basis in any so-called validated research. When Tiger says “say the National Anthem backwards,” after misinterpreting the instructions, the officer might as well have asked him to do that. The “close your eyes with your arms out and recite the alphabet” test has no statistical correlation to impairment by anything. Further, it is not in the DRE manual. A common sense take away from watching the video might lead one to conclude “Woods is hammered.” However, the pitiable manner in which Tiger is behaving could be symptoms of a man who took medication, was at the relative beginning of his prescription run and was experiencing a somnolent episode. In other words, it was as if he was sleepwalking.




DEFENSES AVAILABLE TO TIGER WOODS IN MICHIGAN

A couple of points of note. First is the general concept of involuntary intoxication. Involuntary intoxication is a complete defense to a drunk driving charge in Michigan under a case People v Wilkins, 184 Mich.App. 4 (1990). The Wilkins Court, citing federal authority as well as the authority from other states, ruled that when a person is so intoxicated that the person cannot distinguish right from wrong, it is no different than insanity. The court held:

In Jones v. State, 648 P.2d 1251 (1982), the Court of Criminal Appeals of Oklahoma held that “involuntary intoxication is a complete defense where the defendant is so intoxicated that he is unable to distinguish between right and wrong, the same standard as applied in an insanity defense.” Id., at p. 1258. Moreover, the Supreme Court of Washington in State v. Mriglot, 88 Wash.2d 573, 564 P.2d 784 (1977), ruled that involuntary intoxication equates with temporary insanity as a defense.


The court in Wilkins was reviewing a trial court’s order to exclude some evidence of involuntary intoxication in an involuntary manslaughter case. The court specifically ruled that involuntary intoxication is the equivalent of temporary insanity in a general intent crime (such as drunk driving) and the defendant in Wilkins failed to properly put the prosecution and court on notice of the insanity defense. However, the court ordered a hearing so that trial counsel could make an offer of proof and ask for the evidence to be admitted for another purpose such as intervening negligence.

Another point to make: somnolence. Tiger looks like he is barely awake. In fact, he may not even be awake. Some scientific studies show that certain medications, such as benzodiazapenes can affect drowsiness and combining caffeine with these drugs may affect sleep patterns. https://www.ncbi.nlm.nih.gov/pubmed/1971955

The police report reveals 4 prescription drugs that Tiger self-reported he had taken. Then the report also reveals that the subject was as cooperative as possible and could barely stay awake. It may fit perfectly in a case in which the subject consumed prescription medication according to his doctor’s orders, was adjusting to the new quality of his sleep, in light of the changes to his body cycles caused by the medication. Tiger may not even remember getting behind the wheel. Literally, this is sleep-walking or “sleep-driving.”

The question that seems obvious is “what was in his system and how much was there?” The police report reflects that Tiger stated he had taken 4 drugs, although seemed to qualify that by claiming he had not taken 1 of the drugs “this year.”

Soloxex, Vicodin, torix and viox were the drugs that Tiger said that he had taken. How much of each drug was in Tiger’s system at the time he was found by police is a story told through a discipline called Pharmacokinetics. Pharmacokinetics is the study of the disposition and fate of drugs in a living being. Some in the study of pharmacokinetics or some lawyers would consult a chart by Dr. Winek after receiving Mr. Woods’ blood analysis.

http://www.abmdi.org/documents/winek_tox_data_2001.pdf

However, others believe that there is no such thing as a therapeutic dosage. In other words, every person is different and each person’s system can be different from day to day or even hour to hour. There is a significant segment of the pharmacokinetic camp who subscribes to the opinion that any time a person takes a drug it has the potential effect of impairing the person’s ability to operate a motor vehicle or perform other tasks. The question really is what was the response of Tiger’s system to the drugs that he took and “did he see it coming?” However, if the levels reflect Tiger giving himself a bolos dose of his prescription, the prosecutor may have an argument to make that Tiger knowingly overdosed on one of more of the medications.

The age-old bugaboo of client statements rears its ugly head in that regard. Tiger put a statement on his website within days of his arrest. "I understand the severity of what I did and I take full responsibility for my actions," http://www.cnn.com/2017/05/29/us/tiger-woods-arrested-dui/index.html. This statement appears to have the intent of clearing up the idea that “Tiger got depressed, got hammered and carelessly got behind the wheel knowing he was drunk.” Accounts from many of his friends and foes taken from media accounts and books including one written by his fired golf coach, Hank Haney, make it clear that Tiger was never a drinker. However, Tiger still included in his statement the phrase “what I did.” That is not going to play well for his defense attorney. He may have already been “corrected” by his attorney. On July 3rd, the statement of contrition was not on the website. There is a “twitter update” that is embedded that announces his completion of a private intensive treatment program. His public website is here.

http://tigerwoods.com/tiger/

This is the huge challenge of representing athletes, politicians and celebrities: success in 1 or more aspects of life can make a person feel as if they are equally capable at navigating a public court case as well as he can navigate, for example, a sand trap. It is not the same, of course.

The prosecutor will trot out the statement for all to take in as an admission of Tiger’s consciousness of guilt. Of course, no one intends to commit the crime of OWI. That is the whole point of making it a general intent crime. Thus, consciousness of guilt is irrelevant. Portrayed correctly, the defense attorney can introduce the statement as the product of a man who is trying to express himself in the most appropriate way that he can in the wake of 1 of the most humiliating moments of his life in a lifetime that has had its share of humiliation for the past decade.

It will be interesting to see if Tiger takes his case to trial. Often, the celebrity case results in a plea so that the accused can put the matter behind him sooner, rather than later, express contrition and then move on. It is unfortunate that often a person who may not be guilty in a drunk driving turns out pleading guilty because of the “optics.” If the matter proceeds through further litigation, the public has a chance to learn about some of the tactics by the government in gaining convictions and also the legal/scientific landscape of prosecuting a non-standard drunk driving case. The question for the jury, if Jupiter were really in the state of Michigan, might well be whether Tiger had no idea of what he was doing based on the reaction of his body to the drugs that were prescribed legitimately to help him heal from back fusion surgery.

As of Friday, July 7, 2017, the arraignment was moved from July 5, 2017 to August 8, 2017. The case of The People v Eldrick Tiger Woods is case number 50-2017-CT-009620-AXX-NB and assigned to Judge Sandra Bosso Pardo.

Michael J. Nichols is author of the OWI Handbook for Michigan lawyers published by Thomsen Reuters West. He is a founding member of The Nichols Law Firm, PLLC and the focal point of his practice is complex litigation in particular the defense of citizens charged with drunk and drugged driving. mnichols@nicholslaw.net http://www.nicholslawyers.com
#DUI #DUIDrugs #OWI #OperatingWhileIntoxicated #TigerWoods #PrescrptionsandDUI

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Peer Recognition

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.