This post is about schedule 2 controlled substances under MCL 333.7214, with brief descriptions. Then the post goes on to discuss the charge commonly referred to as drugged driving.
What is a Schedule 2 Controlled Substance?
A substance is considered a schedule 2 controlled substance, when the
- Substance has a high potential for abuse
- Substance has currently accepted medical use, or currently accepted medical use with restrictions
- Abuse of the substance could lead to severe psychic or physical dependence
What are the Schedule 2 Controlled Substances?
Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate excluding nalaxone and its salts, and excluding naltrexone and its salts, but including the following:
- Raw opium Etorphine hydrochloride
- Opium extracts Hydrocodone
- Opium Fluid-extracts Hydromorphone
- Powdered opium Metopon
- Granulated opium Morphine
- Tincture of opium Oxycodone
- Codeine Oxymorphone
- Ethylmorphine Thebaine
The above is a list of painkillers, fro the drug family called opiates.
A salt, compound, derivative, or preparation thereof which is chemically equivalent to or identical with a substance referred to in this subdivision, except that these substances do not include the isoquinoline alkaloids of opium.
Opium poppy, poppy straw, and concentrate of poppy straw, the crude extract of poppy straw in either liquid, solid, or powder form, which contains the phenanthrene alkaloids of the opium poppy.
- Coca leaves and any salt, compound, derivative, or preparation thereof which is chemically equivalent to or identical with any of these substances, except that the substances do not include decocainized coca leaves or extraction of coca leaves which extractions do not contain cocaine or ecgonine. The substances include cocaine, its salts, stereoisomers, and salts of stereoisomers when the existence of the salts, stereoisomers, and salts of stereoisomers is possible within the specific chemical designation. A paragraph listing cocaine and any cocaine derivatives/combinations. Cocaine is a stimulant drug.
Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, when the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation:
- Alphaprodine Fentanyl – Opiate painkiller.
- Anileridine Isomethadone – A synthetic analgesic.
- Bezitramide Levomethorphan – Opioid analgesic.
- Dihydrocodeine Levorphanol
- Diphenoxylate Metazocine
- Methadone – Painkiller, but also used to help people taper from opioid dependence.
- Methadone-Intermediate, 4-cyano-2dimethylamino-4, 4-diphenyl butane
- Moramide-Intermediate, 2-methyl-3-morpholino-1, 1-diphenylpropane-carboxylic acid
- Pethidine – Synthetic opioid pain medication.
- Pethidine-Intermediate-A, 4-cyano-1-methyl-4-phenylpiperidine
- Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate
- Pethidine-Intermediate-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid
- Phenazocine Racemethorphan – Opioid analgesic.
- Piminodine Racemorphan
Unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having potential for abuse associated with a stimulant effect on the nervous system:
- Amphetamine, its salts, optical isomers, and salts of its optical isomers. Amphetamine is a stimulant used to increase concentration, focus, to stay awake, and to suppress appetite.
- Any substance which contains any quantity of methamphetamine, including its salts, stereoisomers, and salts of stereoisomers. Methamphetamine is a type of strong amphetamine whose abuse and dangers of abuse have resulted in a number of specific Michigan Methamphetamine Laws.
- Phenmetrazine and its salts – Was a stimulant that used to be prescribed as an appetite suppressant but has been withdrawn from medical sale.
- Methylphenidate and its salts. Methylphenidate is a stimulant used to treat attention deficit disorder. Methylphenidate hydrochloride is the ingredient in Ritalin.
Any material, compound, mixture, or preparation, including its salts, isomers, and salts of isomers when the existence of the salts, isomers, and salts of isomers is possible within the specific chemical designation as listed in schedule 2, which contains any quantity of the following substances having a potential for abuse associated with the depressant effect on the central nervous system: methaqualone, amobarbital, pentobarbital, or secobarbital; or, any compound, mixture, or preparation containing amobarbital, secobarbital, pentobarbital, or any salt thereof in combination with itself, with another, or with 1 or more other controlled substances.
The drugs listed in the above section are types of barbiturates, which are sedative-type drugs.
Marihuana, but only for the purpose of treating a debilitating medical condition as that term is defined in section 3(b) of the Michigan medical marihuana act, 2008 IL 1, MCL 333.26423, and as authorized under this act.
Operating While Intoxicated by a Schedule 2 Controlled Substance
In Michigan, a person may not operate a vehicle while under the influence of a controlled substance. A person is not guilty just because the controlled substance is in their system. Rather, the prosecution must prove beyond a reasonable doubt that a person’s ability to operate a vehicle in a normal manner was substantially lessened by consumption of the drug.
Many of the substances listed under Schedule 2 are common prescriptions. In the list we can see many painkillers, amphetamines, and sedatives. These drugs are prescribed every day by doctors for a variety of reasons. So we know these drugs are common to take.
How Do We Determine if a Driver is Under the Influence?
The legal standard for for an operating while intoxicated charge is whether the person’s ability to operate a vehicle in a normal manner is substantially lessened. The legal standard for the lesser included offense of operating while visibly impaired is whether a person drove with less ability than an ordinary careful driver.
The point of reciting these legal standards is to show that the question of whether someone is under the influence revolves around their ability to drive. In both standards, we see language regarding the person’s ability to drive.
So I would argue that the first place we look is – how was a person’s driving? The standard of “substantially lessened” should be repeated often and loudly by defense counsel. In many cases, a person is pulled over for speeding, and the police officer did not observe any other bad driving.
Does the fact that the person was speeding mean the ability to drive was substantially lessened? I would loudly say no! We all speed! What’s different about this person speeding and another person speeding? The prosecutor will get up in front of the jury and claim the defendant had the inability to follow the rules of the road, blah, blah, blah.
The reality is the majority of us commit traffic civil infractions every time we drive. That doesn’t mean our ability to drive was affected. Just because a person gave a cop a reason to be pulled over doesn’t mean the driver had a lessened ability to drive. The jury needs to be reminded of this common-sense proposition again and again. This brings me to the topic of field sobriety tests.
What Are Field Sobriety Tests?
A field sobriety test is a part of the police officer’s investigation. The tests are used to assess a person’s coordination, physical impairment, attention, ability to follow directions, etc. Generally, tests will include a walk and turn, a one-leg stand, and a horizontal gaze nystagmus test.
They are “tests” in the sense that the police officer will determine whether the driver “passed” the tests. Here’s the secret: No one ever passes the tests. There are a hundred ways to fail. A person could ace 19 out of 20 parts of the test but “fail” the test because the officer felt that one part was not done correctly.
In the drunk and drugged driving cases it is very important to show the jury what’s not reported by the officer. The officer will get up on the stand and say what the driver did wrong. For example, the officer will say the driver failed the field sobriety test because the driver did not follow directions in the test by starting the test before the officer gave him the go ahead to begin. This is the officer’s evidence of failure.
It becomes the defense attorneys job to point out all the things the driver did correctly and that the officer failed to take into account. For example, the defense attorney must then point out that the driver walked in a straight line, said the numbers out loud, and said the numbers in order, etc. Defense attorneys cannot let police officers and prosecutors get away with concluding a person “failed” a test by doing one thing wrong, when there may have been many things the person did right.
Which brings me to my final point in this section: Don’t take the field sobriety tests. As I explained, you will fail. The field sobriety tests are a way for the police officer to gather evidence on you. Why give the officer a way to gather more evidence? Decline to take the tests. Here’s the thing. You are not going to ace those tests and drive home. The police officer has pulled you over and has already decided you are going to jail. Now the officer just needs the justification to arrest you. The field sobriety tests provide the justification.
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Sam Bernstein is a Criminal Lawyer in Ann Arbor and Ypsilanti.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.
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