OWPD - Operating with the Presence of Drugs

There's a great deal of confusion about the charge of "operating with the presence of drugs."  The name seems to imply that it might be illegal to operate a motor vehicle with drugs in the vehicle, but it is actually a type of drunk driving charge.  Unfortunately, it seems that police officers and even lawyers are confused by the popular name of this offense.  If a person has drugs hidden inside a car, the motorist might be charged with "possession of a controlled substance," but the charge of "operating with the presence of drugs" is not properly charged as a criminal offense.


Operating with the presence of drugs is also NOT the same as Operating Under the Influence of Drugs


"Operating with the presence of drugs" under Michigan law makes it illegal for a driver to operate with "any amount" of a very specific catagory of drugs, namely, any Schedule 1 substance and one, single Schedule 2 substance in the motorist's body.  A Schedule 1 drug is a drug that the federal government has banned, purportedly because:

  • The drug or other substance has a high potential for abuse.
  • The drug or other substance has no currently accepted medical treatment use in the U.S.
  • There is a lack of accepted safety for use of the drug or substance under medical supervision.


Specifically, the statute makes it a crime for a driver to operate a motor vehicle with any amount of Schedule 1 substance (which includes LSD, marijuana, heroin, mescaline, MDMA, GHB, ecstasy, and psilocybin amongst others) and/or cocaine (which is the single Schedule 2 substance on the list).  Cocaine is the only Schedule 2 substance prohibited by the statute, and the reason for its inclusion on the list is frankly because state lawmakers do not like people who use cocaine as a recreational drug.  Schedule 1 substances also include a number of drugs that no one ever uses, such as Peruvian Ayahuasca (Dimethyltryptamine) and Lefetamine (1-Dimethylamino-1,2-diphenylethane). 


The purpose of this law is to circumvent issues regarding actual impairment.  Some people are incapable of driving after using marijuana while others show little or no signs of impairment.  The legislature passed this law in an effort to nullify arguments that the driver was not impaired.  Of course, a lack of impairment is still an issue in these cases, since a chemical test is only one factor for a jury to consider in connection with all other evidence in the case, but it is not an element of the offense.


Importantly, the charge of "operating with the presence of drugs" is NOT a generic offense of operating under the influence of drugs.  A person may be intoxicated as a result of operating under the influence of drugs if they take too much of a certain substance, i.e. the driver is high, stoned, etc.  But in order for the charge of "operating with the presence of drugs" to be properly charged, the prosecutor must be able to prove that the driver had a measurable amount of either a Schedule 1 substance or cocaine in the body.  "Operating with the presence of drugs" can only be charged when specific substances are in the driver’s blood, while “operating under the influence of drugs” can be charged when any controlled substance is alleged to have been taken in excess.


Medical marijuana card holders cannot be charged with the zero-tolerance provisions contained in MCL 257.625(8).  Registered MMMA patients are protected from the "any amount" law as it pertains to marijuana because the MMMA prevents the prosecution of registered patients for the medical use of marijuana, including internal possession, and only withdraws its protection when the patient drives while “under the influence” of marijuana. See People v Koon296 Mich.App. 223, 818 N.W.2d 473 (2012).