Operating with the Presence of Drugs (OWPD)

Michigan recently passed a new law that imposes strict liability for having any amount of a controlled substance present in the body while operating an automobile. This new crime, known as Operating with the Presence of Drugs (OWPD), is part of a package of drunk driving laws that were passed in 2003 purportedly to maintain federal highway funds. Prohibiting any amount of a controlled substance is problematic, especially as it pertains to marijuana which remains in the body for up to 30 days.

Lawmakers drafted the new statute to state that '[a] person . . . shall not operate a vehicle . . .within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 . . . . ' MCL 257.625(8) [Emphasis added.] The law does not define 'any amount,' and it does not say how to detect or measure the presence of a controlled substance in a person's body.

Under the new law, a driver can still be charged with OWI (Operating While Intoxicated) for being under the influence of drugs. Irrespective of whether a person is intoxicated because they've consumed too much alcohol or a controlled substance, the public is overwhelmingly supportive of efforts to keep drunk drivers off the roads. The new 'any amount' law removes the requirement that a motorist be intoxicated. A sober driver can be convicted of drunk driving under the new law based upon analysis of bodily fluids.

The problem with this new law is that a person can be absolutely sober but still considered "drunk" for purposes of the statute.