839 N.W.2d 505
Mich. Ct. App.2013Background
- Police responded to a disabled, heavily damaged vehicle; defendant had slurred speech, balance problems, and said his mother had given him Xanax; hospital blood test showed 250 ng/mL zolpidem (Ambien).
- Defendant was initially charged under MCL 257.625(8) (zero-tolerance for certain scheduled drugs), charge dismissed and recharged under MCL 257.625(1)(a) (operating while intoxicated under influence of a controlled substance).
- Defendant moved to dismiss, arguing zolpidem is not listed in the statutory schedules (MCL 333.7201 et seq.) and MCL 257.625(1) does not incorporate Board of Pharmacy rules; also asserted mistaken ingestion (lack of mens rea).
- District court denied dismissal; circuit court reversed, holding (in effect) that MCL 257.625(1) did not incorporate administrative scheduling rules and that prosecution could not prove the controlled-substance element.
- Court of Appeals (per curiam) reversed the circuit court, holding that the Vehicle Code definition cross-references the Public Health Code, the Board of Pharmacy may schedule substances by rule, and administrative rules have the force of law; zolpidem is a schedule 4 substance by rule, so dismissal was erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCL 257.625(1) incorporates Public Health Code/Board of Pharmacy scheduling by rule to define "controlled substance" | Yes — MCL 257.8b cross-references the Public Health Code; administrative rules have force of law and can add substances (so zolpidem qualifies) | No — (1) contains no reference to schedules or rules; expressio unius excludes unreferenced schedules/rules | Held for prosecution: read in pari materia with Public Health Code; MCL 257.8b and MCL 333.7104 define controlled substance; Board rules binding; zolpidem is schedule 4 by rule. |
| Whether expressio unius prevents using rules to define controlled substances under subsection (1) | Not applicable — expressio unius would render (1) surplusage and defeat legislative intent | Expressio unius should bar prosecution because only (8) references schedules/rules | Held for prosecution: expressio unius inapplicable; (8) is a narrow zero-tolerance provision, (1) is broader. |
| Whether municipal adoption of the Michigan Vehicle Code deprived defendant of notice of the charge | Adoption plus specific citation to MCL 257.625(1) provides adequate notice | Township adoption of the Code without separately publishing schedules/rules left defendant without notice | Held for prosecution: citation to MCL 257.625(1) and pleadings suffice; defendant had notice. |
| Whether mistaken ingestion (lack of mens rea) defeats MCL 257.625(1) charge | OUI under (1) is not a specific-intent crime; prosecution need not prove knowing ingestion | Mistaken ingestion negates required culpability and should bar conviction | Not decided on merits: court left mens rea/factual mistake for trial; (1) does not require proof of knowing ingestion. |
Key Cases Cited
- People v Zajaczkowski, 493 Mich 6 (statutory interpretation reviewed de novo)
- People v Bylsma, 493 Mich 17 (Legislative intent governs statutory interpretation)
- People v Turmon, 417 Mich 638 (Board of Pharmacy may schedule substances by rule; administrative scheduling lawful and provides notice)
- Morley v General Motors Corp., 252 Mich App 287 (agency rules adopted under APA have force and effect of law)
- People v Hyde, 285 Mich App 428 (elements of OUI under MCL 257.625(1))