WOODHAVEN, MI, March 8, 2018 -- Client was involved in a single car rollover accident. No one was seriously hurt, thankfully, but my client was taken to the hospital. No field sobriety tests were conducted roadside since defendant was being treated by EMTs when police arrived. Defendant was interviewed by police at the hospital after the accident, and defendant admitted to smoking crack cocaine a few hours prior to the accident. The officer left the hospital to seek a search warrant for blood. By the time the officer returned with his search warrant, the client had been released by the hospital.
In connection with the medical treatment rendered by the hospital, blood alcohol testing had been conducted by emergency room staff. A urine screen was also conducted for drugs. Normally, medical records are protected as a matter of law under Michigan's doctor patient privilege as well as federal provisions under HIPAA (Health Insurance Portability and Accountability Act of 1996). However, Michigan law permits a limited intrusion upon medical privilege following an accident. As MCL 257.625a(6)(e) states:
(e) If, after an accident, the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver's blood is withdrawn at that time for medical treatment, the results of a chemical analysis of that sample are admissible in any civil or criminal proceeding to show the amount of alcohol or presence of a controlled substance or other intoxicating substance in the person's blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. The medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecuting attorney who requests the results for use in a criminal prosecution as provided in this subdivision. A medical facility or person disclosing information in compliance with this subsection is not civilly or criminally liable for making the disclosure.
The urine screen was positive for cocaine metabolites.
The prosecutor refused to dismiss, and I set the case for a jury trial. The trial court judge insisted that the matter be set for a final settlement conference.
By the time of the settlement conference, the prosecutor had researched the issues that I had previously submitted to him, and he reconsidered. He understood that a urine test from the hospital could not establish the presence of cocaine in defendant's body. In People v Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010), the Michigan Supreme Court held that harmless marijuana metabolite "is not a schedule 1 controlled substance under MCL 333.7212 and, therefore, a person cannot be prosecuted under MCL 257.625(8) for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system." In Feezel, the MSP had tested blood, which is forensically more sound, whereas in the immediate case, the hospital had tested urine. The urine test from the hospital in the immediate case could not reliably measure the amount of metabolite and was not designed to measure the active component of the parent drug at all.
Without field sobriety tests, the prosecutor would have been forced to take the case to trial on very little evidence, i.e. an admission of prior drug use and an accident. No other evidence existed to suggest impairment, and there were several arguments that could have been advanced to exclude the admission of prior drug use. With all this in mind, the prosecutor dismissed the drunk driving charge.