Sometimes, taking a trip down the proverbial rabbit hole yields interesting results. In researching an upcoming article addressing Offense Variable 15 and narcotic drugs (watch for the October issue of this newsletter), I discovered that schedule 1 drugs have a special significance in scoring Offense Variables 3 and 18. Schedule 1 drugs are those such as heroin, LSD, psilocybin, and MDMA/Ecstasy.¹ Many attorneys may know that schedule 1 and 2 drugs are interchangeable when it comes to the penalties prescribed for the manufacture, delivery, possession with intent to deliver and simple possession of high level controlled substances,² yet there is a marked difference in scoring the offense variables -- at least Offense Variables 3 and 18 -- when it comes to schedule 1 drugs.

Notice how Offense Variable 3 (physical injury to victim) allocates 50 points in situations where death occurs with operation of a vehicle and there is any amount of a schedule 1 controlled substance in the body. There is no reference to schedule 2 drugs, except cocaine, ³ which is expressly included:

c) Score 50 points if death results from the commission of a crime and the offense or attempted offense involves the operation of a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive and any of the following apply:

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(iii) The offender's body contained any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or a controlled substance described in section 7214(a)(iv) [cocaine] of the public health code, 1978 PA 368, MCL 333.7214. [MCL 777.33(c); emphasis added.]

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The same language is found in Offense Variable 18 (operator ability affected by drugs or alcohol) where ten points are allocated for operation of a vehicle with any amount of a schedule 1 substance in the body, as well as any amount of cocaine (again, see the direct reference to cocaine as MCL 333.7214(a)(iv):

Sec. 48. (1) Offense variable 18 is operator ability affected by alcohol or drugs. Score offense variable 18 by determining which of the following subdivisions apply and by assigning the number of points attributable to the applicable subdivision that has the highest number of points:

[MCL 777.48; emphasis added.]

Not surprisingly, the same language addressing the operation of a vehicle with “any amount” of a schedule 1 drug or cocaine in the body is found in the various drunk driving statutes: MCL 257.625(8) (operation of motor vehicle under the influence); MCL 324.82127(1)(c) (operation of a snowmobile under the influence); MCL 324.80176(1)(c) (operation of a motorboat under the influence); and MCL 324.81134(1)(c) (operation of an ORV under the influence).

There is similar language in the summary forfeiture statute. MCL 333.7525(1) (“A controlled substance that is listed in schedule 1 that is possessed, transferred, sold, or offered for sale in violation of this article is contraband and shall be seized and summarily forfeited to this state.”).

Why are schedule 2 drugs, with the exception of cocaine, not referenced? It’s not that schedule 2 drugs are less serious or have no potential for danger. Some common schedule 2 drugs are opium, morphine, fentanyl (but not its analogues), OxyContin, Vicodin, methamphetamine and codeine.⁴ The difference, in large part, is that schedule 2 drugs have some recognized medical use (and that surprisingly includes meth and cocaine). A schedule 2 drug has “high potential for abuse [,]” “may lead to sever psychic or physical dependence, [”] and “has currently accepted medical use in treatment in the United States or currently accepted medical use with several restrictions.”⁵ In contrast, a schedule 1 drug has no accepted medical use or cannot be used safely: “The administrator shall place a substance in schedule 1 if it finds that the substance has high potential for abuse and no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.⁶ 

Why does medical use matter? It would appear the Michigan Legislature was willing to punish operation of a vehicle with even trace amounts of a schedule 1 drug in the body (i.e., drugs that have no medical use) and trace amounts of cocaine, but it was not willing to say the same about substances that might be prescribed by a doctor for legitimate medical purposes. For example, if a person was taking Vicodin with a legitimate medical prescription, and the person believed the drug was no longer in their system, the law would not punish the operation of a vehicle with trace amounts of the substance lingering in the body (assuming no other aggravating factors).

Drunk driving experts may already know this, but it may come as a surprise to those who do not focus on the intricacies of controlled (and regulated) substances law. How does this relate to next month’s column?

Wait until you see what qualifies as a “narcotic” for purposes of Offense Variable 15. Hint: it’s not tied to whether it’s a schedule 1 or 2 drug.

Michigan Sentencing PLLC

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