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In The News

Wednesday, February 21, 2018

Spring in Michigan Means Hash Bash and 420: Driving to Party? Implied Consent Refusals and Drugged/Drunk Driving Cases

By Michael Nichols
Categories: Michael J. Nichols

If you are arrested validly, for a crime described under MCL 257.625c then you are subject to the so-called "implied consent act." The act requires that you must not withhold consent to a chemical test of the officer's choosing - whether it is blood, breath or urine (they never choose urine).

This means that as long as the officer made an arrest for operating while intoxicated then the implied consent law paints you as the citizen in a corner. It does not matter whether the crime of arrest was either intoxication or impairment by prescription medication, alcohol or any other intoxicating substance (this would be misusing medications or any other non-food consumable, mind-altering substance like - say for example - paint thinner). The same holds true for a person allegedly driving on a drug that is illegal to have on board while driving because it is a schedule I controlled substance. This means in short - that the drug is perceived to have no therapeutic or medical value, therefore no scientific research is allowed on that drug. Amazingly, THC is classified as a schedule I controlled substance. The same is true for cocaine and heroin.

As it relates to medical marijuana patients for implied consent purposes, even if an officer improperly made an arrest for driving with the presence of THC or driving while impaired by THC - note that the case of People v Koon requires the prosecutor to prove beyond a reasonable doubt that the person operated while "under the influence." This is a greater threshold, requiring proof that the THC "substantially lessened" the person's ability to operate a motor vehicle. In other words, THC significantly affected his/her mental or physical condition. It has to be more than impairment or the presence of the drug on board. That is the whole purpose of giving people immunity from prosecution if they are otherwise lawfully using marijuana as medicine.

The patient who is charged wrongfully will have to go through the hearing process if the officer alleges a refusal to give consent for a chemical test under MCL 257.625f, the implied consent act. The citizen has 14 days from the date of the alleged refusal to request a hearing. If that request is postmarked within the end of the 14th day then the citizen is entitled to a "refusal hearing" or "implied consent hearing" before an administrative law judge at the Secretary of State. The officer will then have to prove 4 things by a preponderance of the evidence 1. the officer had reasonable grounds to suspect a violation of the drunk driving statute; 2. that the officer validly arrested the driver; 3. that the driver unreasonably refused to give consent to a chemical test and 4. that the officer properly advised the driver of his or her chemical test rights. Remember, because the burden is preponderance of the evidence, that means just 50% plus a feather in the eyes of the law.

A recent case involving an officer and a Nichols Law Firm client is a great example of persistence but discipline at the same time. On a Saturday morning in early December, a Michigan State Police Trooper made a traffic stop on a highway in Eaton County. The trooper thought he had a "laydown hand" with a drunk driver. Admission to 2 beers; stop for speeding; odor of intoxicants. The arrest for OWI was imminent.

That might be where the confirmation bias kicked in and the failure to apply proper training and investigative techniques led to some unfortunate shortcuts. Michigan OWI attorney Mike Nichols of East Lansing said: "I observed the officer administer the horizontal gaze nystagmus test, the one leg stand and the walk and turn followed by the PBT in less than 7 minutes." He added "my initial thought was that perhaps parsing out the specific steps in the test protocol and how the video showed the officer fail to follow them was the way to go ... then I realized I needed to keep it simple." This is where discipline in cross examination was important: elicit what the officer does not know, make a record of what he should know but do not go on from there and try to 'bring it home.' Nichols says "so many times when I think I have to make the point absolutely clear and say 'so, officer, you ... ' I find that I went too far and gave him a chance to clean up his testimony."

Fast forward to a warmer but no less gray-shrouded Wednesday morning at the Secretary of State office near the Frandor Mall. The trooper appeared. He blithely entered the hearing room thinking he was armed with all the information he needed, right down to a .269 PBT result.

The only problem? He had no ability or willingness to explain to the hearing officer very basic things like how many clues are in each SFST test or whether he even asked the subject he arrested if he placed anything in his mouth prior to the administration of the PBT. The later issue is especially important because the PBT is highly susceptible to mouth alcohol or inaccurate readings. Nichols says "explaining the clues in the SFSTs are also important because the officers have got to be able to correlate their training in cues of impairment to the observations that they make on the roadside ... this was one of the most unfortunate failures I think I've seen in a very long time."

The result was a finding that the officer did not make a valid arrest for OWI. Under a case called People v Borchard-Ruhland, a "valid arrest is a sine qua non to energize the implied consent act."

So, while the facts at face value may seem to defy any possibility of prevailing on any level, it is important to show up and give it a go. When you score points do not give the officer a chance to "make a record." For example, if he cannot even remember or fails to properly describe how to administer the HGN or describe what to look for by way of "cues" - do not educate him and take him through what he should have done. He will only respond with "that is what I did and what I meant to say." Less is more - as they say and often, like in this case, it means everything to argue to the judge what the officer failed to describe by way of proper protocol or investigatory techniques.

Mike Nichols is committed to results. Find him at

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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.