Michigan Law - OWPD - Operating While in the Presence of Drugs

December 2, 2009

A few years back, the State of Michigan enacted a new Law which created a new crime, called Operating While in the Presence of Drugs. Even prior to the enactment of the new Law, it was always illegal to Operate a Motor Vehicle Under the Influence of Drugs, and the charge associated with that offense was known as OUID. Now, Driving Under the Influence of Drugs is part of the overhauled OWI law, and included in that law is the new "Presence of Drugs" Offense, set forth in section (8).

The history of these laws is not nearly as important as their consequences. OWPD simply defines "presence" of drugs as "if the person has in his or her body any amount of a controlled substance..." This means that a person who submits to a urine test and, for example, tests positive for Marijuana, can be charged and convicted of the Offense simply because the substance was in their body (i.e., any amount in their body). I have seen this Offense charged in Macomb County.

Pretty much everyone knows that marijuana affects the user for up to several hours after consumption, and pretty much everyone will agree those effects are gone the next day, if not far sooner. Under this new law, a person who smoked a small amount of Marijuana almost 30 days before any urine test may well be "positive" for "any amount" of drugs within their body, and be subject to the same penalties as a Drunk Driver. Remember, the metabolites of Marijuana show up in urine for up to 30 days.

Of course, other Drugs have much shorter half-lives, making a positive urine test much more likely to indicate recent ingestion. Even so, it is very clear that to drive under the influence of drugs is a crime. This new law goes way beyond that. Think about it this way; under this law, if a person uses Marijuana even once, in their lifetime, they cannot drive without violating this law until they test themselves and make sure that any trace amount is out of their system, which, as we know, can take up to 30 days.

With the exception of a $500 Driver Responsibility Fee for 2 years (as opposed to $1000 for OWI), all the penalties for a 1st Offense violation of this law are the same as they are for a 1st Offense DUI:

$100 to $500 fine and one or more of the following:

Up to 93 days in jail.

Up to 360 hours of community service.

Driver's license suspension for 30 days, followed by
restrictions for 150 days.

Possible vehicle immobilization.

Six points on driving record.

$500 Driver Responsibility fee for two consecutive years.


The point to all this is just to note that many people may not even be aware that they are violating the Law when they drive their car, even those who would never think to endanger anyone by driving under the influence of anything. Fortunately, in my Practice, which involves handling all kinds of DUI and other Driving and Driver's License Cases, the charge of OWPD has only come up rarely. Given the apparently unfair effect of the law, let's hope it stays that way.