New Michigan Law On Driving While Intoxicated on Prescription Drugs

In the flurry of end-of-year activity and the heightened media coverage of the passage of the Right-to-Work Legislation in December 2012, the Michigan Legislature also passed Public Act 543 with the intention to “close the loop” of driving under the influence laws so that substances other than alcohol were also included, such as marijuana.  The Law was signed on January 2, 2013 by Governor Synder and becomes effective on March 31, 2013.   Although the Legislation may have been well intended, Public Act 543 may need reconsideration and modification to address serious concerns brought up by both the legal and medical professions.  Many attorneys are concerned that the Law’s definition of “intoxicating substance” is so broad that the general public will be unable to determine what drugs would cause a person to be potentially liable for “driving under the influence” and subject to arrest.   According to the Law, “intoxicating substance” refers to any substance or preparation listed as a drug in The Official United States Pharmacopeia, The Official Homeopathic Pharmacopoeia of the United States or The Official National Formulary.  The Law also defines an intoxicating substance as “a substance, other than food, that is used in a manner or for a purpose for which it was not intended, and that may result in a condition of intoxication.”

“The use of specific publications to define a criminal offense creates a serious problem when citizens do not have access to the publications and when the publications change frequently.  It leaves the drivers of Michigan in between a rock and a hard spot.  Either they spend a significant amount of money each year to have access to the publications or they roll the dice and risk being charged with a criminal offense” says attorney Joshua M. Covert.

Doctors are also concerned that the Law’s definition of “intoxicating” substances includes almost all of the medications prescribed for behavioral health patients, high blood pressure medications, antihistamines, decongestants and many other commonly prescribed medications which physicians did not fathom would be included under the Law.  For example, people with allergies could potentially be “under the influence” of an” intoxicating substance” if they take a Sudafed to stop their nose from running and then decide to drive.   Physician groups are disappointed that neither the Michigan Legislature nor the Governor’s Office consulted with medical professional groups to consider the full impact of the Law.  Many Physician groups are now contacting the Michigan Department of Community Health to create a response to the legislation because of its perceived disastrous potential impact on the public.

The Full text of the Law can be seen at:  http://www.legislature.mi.gov/documents/2011-2012/publicact/pdf/2012-PA-0543.pdf

Obviously, this new Law was designed to protect the public from dangerous drivers who make poor choices in regards to the use of intoxicating substances; however, it appears that a better balance can be accomplished by more concise legislative drafting to protect  both Michigan drivers from being seriously injured by dangerously intoxicated persons and avoid restricting a large segment of the population from ever driving when taking necessary physician prescribed medications.  

Please contact your State Representative or Senator to share your concerns and / or comments regarding Public Act 543. 

Achieving a Fair Value for Your “Totaled” Car

Adjusters often try to persuade their insurance clients into accepting less than they are entitled. Adjusters will use tactics such as discounting the value of certain options and then threatening to take the entire matter to arbitration when the client disagrees with the valuation. Most insurance contracts do contain an arbitration clause that mandate binding arbitration when there are disagreements as to value. Some insurance adjusters try to scare their own clients into accepting the lower valuation by stating that if the disagreement goes to arbitration, the client will have to pay more in arbitration costs, expert appraiser fees, and attorney costs than the difference in the disputed value. You can increase the valuation amount by using Internet resources to serve as the basis for your value arguments. KellyBlue Book and the National Automobile Dealers Association (NADA) websites are easy to use and will allow you to select the model, make, year, and options to generate a fair value. Insurance adjusters often feel that the Kelly Blue Book values are too high and aimed at the consumer market (classified ads) rather than the car dealer’s market. Adjusters generally believe the NADA values are more accurate since it is more likely that a replacement vehicle with identical options would be found at a car dealership rather than through the classified ads. However, insurance adjusters don’t account for dealer mark-ups that get tacked on to the trade-in-values taken from NADA. You can also search the Internet for a car dealer ad for a similar car and use the ad prices as an additional basis for your increased value argument. You also should insist that sales tax is added to the final valuation amount since this is a cost that you will have to bear when you purchase a replacement vehicle. Sometimes these valuation strategies are not enough and an attorney should intervene in order to cut or reverse the intimidation and games that some insurance adjusters play.

Governor Signs Kelsey's Law Banning Cell Phone Use for Level 1 & 2 Teenage Drivers

On Tuesday, January 8, 2013, Governor Rick Synder signed a new legislative act that has been named "Kelsey's Law."  The law prohibits all new drivers on their probationary licenses from talking on their phone while driving.  Violation of the law by teenagers will be a civil infraction that could cause a young driver an extension of their probationary license period.  The law applies to all Level 1 license holders that can only drive with a parent, guardian, or person over 21 years old.  The law also applies to Level 2 drivers that are allowed to drive with limits such as restricted hours of driving and transporting other young passengers.   Kelsey's law, Senate Bill 756, will take effect in late March 2013.

The law was named in the memory of Kelsey Raffaele, a Sault Ste. Marie teenager, who died in January 2010 when she caused a serious auto accident while talking on her cellphone and trying to pass another vehicle on a two-lane highway.  Kelsey's surviving mother, father, and twin sister, Courtney, were present at the Governor's signing ceremony in Lansing.  Kelsey's sister Courtney had lobbied members of the State House and Senate to get Kelsey's law passed into law.  Kelsey's mother, Bonnie Raffaele, stated after the law's signing ceremony "I know that Kelsey is up in heaven just clapping and screaming for joy over this because of the lives that can be saved through (her) tragic death."

A Car's Crash Data Retrieval Module Can Provide Valuable Evidence for an Auto Accident Trial

Most people don't realize that many newer makes and models of automobiles contain a Crash Data Retrieval (CDR) tool as part of the airbag control module.   Even if the airbag does not deploy, the CDR records data once it is "activated" by a sudden change in direction, sudden rotations, or hard braking that often occur just prior to an accident.  The CDR makes an electronic record of important data like speed, braking, steering angle, order of impact, seat belt use, presence of an occupant, and impact severity (change in velocity / delta v forces) in the few seconds before the crash.  Different car makes and models record different amounts of data and different number of "events."  This electronic data can be retrieved by an expert technologist and the data is often used by law enforcement officers, accident reconstructionist, government researchers, insurance adjusters, and attorneys.  It is very important that your attorney has the experience and knowledge of how to preserve this information for a trial or negotiations with insurance companies. 

Proper and Legal Speed Depends Upon Conditions- You Can Be Found Careless or Negligent Even If You are Driving at Posted Speed Limits

Michigan Law, MCL 257.627(1) and 257.626(2), require that drivers always consider both the weather conditions and road conditions when choosing what speed to drive.  The law requires that you remain in control of you car at all times and be able to stop your car within a reasonable distance.  Some people mistakenly believe that as long as they are at the speed limit, or under, they will not be ticketed or found to be negligent or careless in their driving.  Michigan drivers must always maintain control of their vehicles depending on road conditions. 

Many drivers on gravel roads over-estimate the safe speed to travel and may think that by traveling the speed limit they will be safe and avoid getting ticketed; however, if the gravel road is rutted due to water run off or full of pot-holes, then drivers are required to slow down so they can always remain in control.  The same principle of always remaining in control and being able to stop in a reasonable distance also applies to paved roads.  If there is fog, ice, slush, snow, or potholes present, then traveling at the posted 70 m.p.h. on freeways will not assure that you are following the letter of the law.          

Michigan drivers face many challenges with our winter weather that includes many freezing and thawing cycles during just a few hours. With the approaching winter weather, Michigan drivers need to avoid becoming too over-confident in their winter driving abilities and slow down for our unique Michigan winter weather systems.  

If you are seriously injured in Michigan due to the negligence of another driver losing control of his / her car, then you should call an attorney to make sure that you preserve all the evidence and all of your rights to fully recover your damages. 

The Most Dangerous Holiday for Drinking & Driving

You might be surprised that New Year's Eve is not the most dangerous holiday for alcohol related traffic deaths and injuries.  It turns out that Thanksgiving has that unfortunate distinction.  The Thanksgiving holiday weekend is the most dangerous due to the high volume of people on the road and the fact that the holiday always begins on Thursday for a four-day-weekend of overindulgence.  According to the National Highway Traffic Safety Administration's report on motor vehicle deaths, Thanksgiving weekend is number one and July 4th weekend is number two as the most dangerous holidays for drivers.  The other long weekends of Memorial Day and Labor Day come in fourth and fifth most dangerous.  New Years is number six because it often does not not fall on a weekend or near the weekend. 

Most people don't realize that for the average person, each drink adds 0.02% to the Blood Alcohol Concentration an hour and in that hour only  about 0.01% is removed by the body's metabolic processing. This is why blood alcohol concentrations build steadily throughout a long day of holiday celebration causing levels to often rise beyond the legal driving limit  (0.08% BAC in Michigan).  Be aware that you cannot speed your body's processing of alcohol with coffee or other urban-myth-remedies.  Be safe and don't make another Michigan family suffer a holiday tragedy of losing a loved-one.  If you over-indulge, or know that you will likely over-indulge, please use a designated driver or call a cab.  Nothing is more heart-wrenching to watch than a drunk driver, who has caused someone's death, facing the family of the deceased while they make victim impact statements to the judge before the judge decides the length of the prison term for the drunk driver.      

Pedestrian Safety Devices Need to Be Installed in Ann Arbor

The recent tragic death of pedestrian Menghua Tian, 70, of Ann Arbor, Michigan must draw the City of Ann Arbor's quick attention and spark action.  Ms. Tian was killed recently by a pick-up truck on Ann Arbor-Saline Road between Eisenhower and South Main.  The City's 2007 Non-motorized transportation plan called for a crosswalk near the place where Ms. Tian was recently hit and killed.  Five years after this plan's publication there is still no cross walk, pedestrian safety island, or High-Intensity Activated crossWalK (HAWK) system, or Rectangular Rapid Flashing Beacons (RRFBs) in place on Ann Arbor-Saline Road. Several years ago a pedestrian's death near U of M's North Campus on Plymouth Road sparked the City to install several RRFBs with pedestrian safety islands.    Additionally, the pedestrian death in August 2012 on Golfside Drive in Pittsfield Township should spark Pittsfield Township to make safety improvements on this well-known-dangerous road.  All these pedestrian deaths occurred on five-lane roads that lack safe pedestrian crossings between far-spaced stop-light intersections.  Safety developments that have already been tested in Ann Arbor, like RRFBs and HAWK systems, need to be installed as soon as possible to prevent any more tragic pedestrian deaths on these high-traffic-volume dangerous five-lane roads.