Operating Under the Influence of Herbs Other Than Marijuana

by Patrick T. Barone

Patrick T. Barone is an adjunct professor at Cooley Law School where he teaches "Drunk Driving Law and Practice."  Mr. Barone is also the co-author of two books on DUI-related issues, including Defending Drinking Drivers (James Publishing), a well-known and highly respected multi-volume national legal treatise.  He is a frequent lecturer on trial practice and drunk driving defense tactics. He can be contacted on the web at: www.baronedefensefirm.com.

 If some Michigan law makers have their way, then there will soon be no legal difference between driving under influence of ginseng and many other herbs, and driving under the influence of alcohol.  Why?  Because under current Senate Bill 353 they would both be “drugs” that could cause a person to potentially violate the same law.1

 The principle charge for intoxicated driving is called “OWI” and a prosecutor has four different theories he or she can use to prove this crime.  Two of them involve alcohol, and two involve drugs.  Regarding the drug theories, if a driver is found to have any amount of a schedule one2 drug in their system while operating, then they are in violation of the OWI law regardless of amount present and regardless of whether such amount caused intoxication.  On the other hand, for non-schedule one drugs, the prosecutor must prove that the drug in question actually caused the driver’s ability to be substantially lessened.

 Michigan’s laws prohibiting driving while intoxicated or impaired are in a constant state of flux, but are moving ever forward toward accomplishing two goals: (1) increasingly draconian penalties for violation, and (2) increasingly broad definitions of prohibited behavior.  In the latter, the trend has been toward either lowering the “legal limit” for alcohol and/or broadening the definition of “intoxicating substance” or “drug.”  This definition-broadening is the goal of a bill now pending in Michigan3 which would amend the Michigan Vehicle Code to do all of the following:

 Change and broaden the definition of "intoxicating substance" such that this would be defined as

Any substance, other than alcohol or a controlled substance, that is recognized as a drug in the official United States Pharmacopeia4 (USP), official Homeopathic Pharmacopeia of the United States (HPUS), or official National Formulary, or any supplement to any of them.  The term also would include a substance, other than food, that when taken into a person's body may negatively affect his or her ability to operate a motor vehicle.5

 It is important to understand the difference between USP and HPUS in order to fully appreciate just how broad this proposed definition really is.  The USP lists and monitors those substances that are commonly thought of as medicines; the kinds of things your medical doctor might prescribe or recommend.  On the other hand, an osteopathic doctor, or a holistic healer, might engage in homeopathy, which shuns modern pharmaceuticals.  Instead, this “alternative” medical treatment favors the use of herbal medicines; and it is in this arena that the proposed real expansion of the drug definition takes place.  These herbal medicines are the province of the HPUS.

 According to the HPUS web site6 any substance may be considered a homeopathic medicine if it has known "homeopathic provings" and/or known effects which mimic the symptoms, syndromes or conditions which it is administered to treat, and is manufactured according to the specifications of the Homeopathic Pharmacopoeia of the United States (HPUS).  Official homeopathic drugs are those that have been monographed and accepted for inclusion in the HPUS.”

 Closely related is the “National Formulary.”  This compendium was “established in 1888 by the American Pharmaceutical Association and includes standards for excipients, botanicals, and other similar products.7”   Together these two sources list dozens of common and uncommon herbs and such every day “medicines” as: Ginseng, Magnesium, Melatonin, German Chamomile, Progesterone, Red Yeast, St. John's Wort and Vitamin D.

In addition to the broadening of the definition of “drug”, the proposed law also:

• Prohibits a person from operating a vehicle while under the influence or while impaired due to the consumption of any intoxicating substance (as broadly defined).
• Prohibits a person from allowing a vehicle to be operated by a person who was under the influence or visibly impaired by the consumption of, any intoxicating substance.
• Requires a jury or court to make a finding as to whether a person charged with OWI was under the influence of an intoxicating substance or a combination of alcohol, a controlled substance, or another intoxicating substance.
• Also, if a person is charged with OWI, the court must require the jury to return a written finding as to whether the person was under the influence of a controlled substance or a combination of alcohol and a controlled substance at the time of the violation.
• If the court convicts the person without a jury or accepts a plea of guilty or no contest, the court must make the finding.

 Presumably, the last two listed above are simply for record and statistics keeping purposes.

 Currently, law enforcement officials trained as “Drug Recognition Experts” or DREs, are taught using this working definition of a drug: Any substance, which when taken into the human body, can impair the ability of the person to operate a vehicle safely.  It would seem that the proposed change to Michigan’s OWI law would expand the definition of a drug to even further broaden what is otherwise taught in the DRE course.

 The problem with Michigan’s proposed expanded definition of the word “drug” is that it makes virtually everyone who exhibits signs of bad driving potentially subject to prosecution for OWI.  Would this proposed change really make our streets safer?  Or, would it simply further the ever-increasing criminalization of America.



1.. MCLA § 257.625 et. seq.
2.  MCLA § 333.7212
3.  SB 353. This is a bill that would add "another intoxicating substance" to 257.625 (1)
4.  According to their web site, the “United States Pharacopeia” (USP) is “a scientific nonprofit organization that sets standards for the quality, purity, identity, and strength of medicines, food ingredients, and dietary supplements manufactured, distributed and consumed worldwide.”
5.  SB 353.
6.  http://www.hpus.com/whatishomeopathy.php
7.  United States Pharmacopeia and National Formulary