Michael J. Nichols, Esq. The Nichols
Law Firm, PLLC
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MCL 257.625
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OWI Alcohol
OWI Schedule I
 Marijuana is here
 Other “controlled substances”
 Other “intoxicating substances”
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MCL 257.319
MCL 257.304
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(25) As used in this section:
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(a) “Intoxicating substance” means any substance, preparation, or a combination of
substances and preparations other than alcohol or a controlled substance, that is
either of the following:
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(i) Recognized as a drug in any of the following publications or their supplements:
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(A) The official United States pharmacopoeia.
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(B) The official homeopathic pharmacopoeia of the United States.
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(C) The official national formulary.
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(ii) A substance, other than food, taken into a person's body, including, but not
limited to, vapors or fumes, 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.
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People v Barbarich 291 Mich App 468 (2011)
United States v Freeman 209 F3d 464 (6th Cir 2000)
Reasonable Articulable Suspicion?
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392 US 1; 88 SCt 1868 (1968)
Probable Cause that a Motor Vehicle Code Provision
was Violated? 517 US 806; 116 SCt 1769 (1996)
The Michigan Vehicle Code, MCL 257.601
Loud
Too Heavy
HUNDREDS
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Sec. 742. (1) A police officer who witnesses a
person violating this act or a local ordinance
substantially corresponding to this act, which
violation is a civil infraction, may stop the
person, detain the person temporarily for
purposes of making a record of vehicle check, and
prepare and subscribe, as soon as possible and as
completely as possible, an original and 3 copies
of a written citation, which shall be a notice to
appear in court for 1 or more civil infractions.
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It is a detention
440 US 648; 99 SCt 1391 (1979)
Removal of the Vehicle is a SECOND detention
with fresh PC required
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People v Rizzo 243 Mich App 151
STRONG Odor of Alcohol
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SFST’s
Non-SFST’s
The 3 SFST’s
The Non-SFST’s
2006 NHTSA Student Manual
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“if the tests are not administered in the prescribed
manner … the validity is compromised.”
(USDOT.gov/NHTSA/DWIDetectionStudentmanua
l; VIII-19)
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“we want breath from the deepest part of the
lung … that’s where the breath is most
representative of the blood.”
Dave Radomski, Vice President, National
Patent Analytical Systems
Alcohol Profile Display
That’s how you see the QUALITY of the breath
TURNED OFF!
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Pre Analytical
Preservation
Sampling Error
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People v Koon No. 145259. Dec May 21, 2013
Significantly, “under the influence” is a term of art
used in other provisions of the Michigan Vehicle Code.
See, e.g., MCL 257.625(1)(a) (stating that a person is
“operating while intoxicated” if he or she is “under the
influence of . . . a controlled substance . . .”). See also
People v Lambert, 395 Mich 296, 305; 235 NW2d 338
(1975) (concluding that an acceptable jury instruction
for “driving under the influence of intoxicating liquor”
included requiring proof that the person’s ability to
drive was “substantially and materially affected”);
Black’s Law Dictionary (9th ed), p 1665 (defining
“under the influence” as “deprived of clearness of
mind and self-control because of drugs or alcohol”).
FN 14
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The 1 page lab report does not mean guilt is
proved BRD – GET THE DATA!
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The source is the positive controls from their
own data set along with what is MISSING.
The MSP is UNABLE to demonstrate how it
arrived at its Limit of Detection (seeing it) and
Limit of Quantification (measuring it). 2 critical
components of the Method Detection Limit.
For most processes, the thing needs to be
cleaned & extracted: it is CHANGED!
Wells, Prest and Russ, “Signal, Noise, and
Detection Limits in Mass Spectrometry,”
Technical Note. Agilent Technologies.
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Often the lab supervisor makes statements that
are helpful
“I’m absolutely positive that this is not a false
positive.”
 “Our data looks very nice.”
 “You see nice pretty peaks.”
 “I made an administrative decision to change our
cut-off level for reporting from 1 nanogram per
mililiter to 3 … because I want the prosecutor to
have a strong case.” Geoff A. French, September 28,
2012.
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http://www.thetruthaboutforensicscience.com
http://www.bulletpath.com
http://www.cowanlawfirm.com/attorneys/te
d-vosk/
September 21, 2013: Michigan Association of
OWI Attorneys (MIAOWIA) National DUI
Seminar
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Justin McShane
Ted Vosk
Ronald Henson, PhD.