Mens Rea: Pending bill would criminalize caffeinated driving

By Mike Nichols

Coffee lovers beware: the legislature is coming after your right to party. The Michigan Senate is considering Senate Bill 353. This bill would modify the drunk driving statute so that anyone driving under the influence of alcohol, controlled substances or ''another intoxicating substance.'' What is wrong with that you ask?

The supporters of the bill may be worried about being able to punish people who use synthetic marijuana, spice, K2 or some other type of designer drugs that have yet to be invented. The problem is that the way ''another intoxicating substance'' is defined covers almost anything and everything in my kitchen right now from my Biggby French roast coffee to my stale orange juice.

''Another intoxicating substance'' is defined as any substance which affects the nervous system, brain or muscles so as to impair to an appreciable degree, the person's ability to operate a vehicle in a manner that a prudent and cautious person, in full possession of his or her faculties using reasonable care, would operate a similar vehicle under like circumstances.''


Already people operating vehicles in Michigan face subjective determinations by police officers that investigate them for operating under the influence of alcohol or controlled substances. The Michigan Commission on Law Enforcement Standards has required that all newly certified police officers are trained in the standardized field sobriety tests (SFSTs) developed by the National Highway Traffic Safety Administration (NHTSA). However, it is rare that an officer administers the NHTSA SFSTs even substantially compliant with the NHTSA protocols.

When an officer does not use standardized criteria to detect an impaired driver, it leaves an officer ultimately with subjective criteria to try to determine if someone who they never met before is under the influence of alcohol or other controlled substances. So, imagine if the officer has to guess if someone is under the influence of ''another intoxicating substance'' by that definition.

Think coffee can never be included in that definition? The December 2005 edition of Newscientist magazine featured a study of MRI on brain waves of subjects after they were dosed with coffee. The MRI revealed that areas of the prefrontal lobe were stimulated. There you have it; coffee affects your brain. If you drink too much coffee, you will be just as drunk according to the Michigan legislature than if you spend hours on a bar stool and your bodily alcohol content exceeds .08 grams/210 liters of breath or 100 milliliters of blood if this bill is passed. It is not even a matter of drinking too much coffee, but drinking enough so that it affects your brain to the point that you cannot operate your vehicle in the same way that a prudent and cautious person who has had no coffee would operate a similar vehicle in like circumstances.

You know the only thing more dangerous than my wife taking our 2 year old to daycare at 8 am after 3 cups of coffee? My wife driving at 8 am after no coffee at all.

You know the only thing more dangerous than not having a drunk driving law? Having the Michigan legislature amend it.

SB 353 is about to be voted on in the Senate. If it is passed, it goes to the Michigan House for consideration. It ought to be dumped. The bill drafters should start over and try it again ... after a few cups of coffee.

Michael J. Nichols is an OWI Expert attorney and author of the Michigan OWI Handbook by West Publishing. He is an adjunct professor of DUI Law and Practice at Thomas M. Cooley Law School in Lansing. He practices in East Lansing at

Published: Thu, Jan 12, 2012


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