The state’s operating while intoxicated statute (OWI formerly DUI) is relatively clear and well settled. It prohibits operating a motor vehicle while under the influence of alcohol (over 0.08% blood alcohol content) or a controlled substance. Most people who get charged with the statute know exactly why. But a recent decision by the Michigan Court of Appeals could put many drivers in danger of receiving this potentially life-changing misdemeanor charge.
The risk: driving while under the influence of a medication labeled a controlled substance. The statute clearly includes controlled substances, which are drugs listed on schedules 1 to 5 of the Controlled Substances Act.
A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated. As used in this section, “operating while intoxicated” means any of the following: (a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.
This prevents people from driving after using marijuana or cocaine, for example.
But further down the list of schedules are drugs that are often prescribed for daily use. In addition, the Michigan Board of Pharmacy has the authority to add drugs to the schedules or to change on which schedule a drug is listed.
The defendant in People v. Kane had accidentally taken an Ambien (Zolpidem) sedative rather than his prescribed Xanax. Zolpidem is not listed on the statutory schedules 1 through 5, but the Michigan Board of Pharmacy has listed it as a schedule 4 controlled substance. The court ruled that he could be charged with operating while intoxicated because he drove with Zolpidem in his system.
The court held the defendant responsible not only for knowing whether the drug he took was on the legislatively set schedules, but also for keeping up with the changes made by the Michigan Board of Pharmacy. The lists can be found here. If he was under the influence of anything on those lists, he was not allowed to drive.
*Please note: Every case is different, and there may be some aspect of your particular case which may result in an out some other than is descrigbed above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.