            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 26, 2019
               Plaintiff-Appellee,

v                                                                  No. 340541
                                                                   Wayne Circuit Court
KELLIE NICHOLE STOCK,                                              LC No. 17-003509-01-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and CAVANAGH and SHAPIRO, JJ.

SHAPIRO, J. (concurring in part and dissenting in part).

        I concur with my colleagues in all respects except their conclusion that there was
sufficient evidence to support the conviction of operating a motor vehicle while intoxicated
causing death, MCL 257.625(4)(a). The conclusion that defendant was intoxicated rested on
post-accident urine and blood tests that were positive for an unidentified “cocaine metabolite,”
not cocaine. Presence of a metabolite is not conclusive proof that a defendant was intoxicated at
the time of the crash. See People v Feezel, 486 Mich 184; 783 NW2d 67 (2010). The
prosecution offered no proof that the presence of a metabolite was the equivalent of the presence
of cocaine itself or how long the relevant metabolite remains in the blood stream following use
of cocaine. The majority concludes that Feezle is not relevant here, noting that the marijuana
metabolite has no pharmacological or intoxicating effect. The same is true here; we have no
basis to conclude that the cocaine metabolite indicated use on the day of the crash nor that the
quantity of the metabolite correlates to actual intoxication. The majority concludes that it was
defendant’s burden to prove that cocaine metabolites are not reliable measures of actual cocaine
blood levels. However, the burden of proof was on the prosecution to prove each element of the
offense—this includes proof of intoxication and/or a listed controlled substance in the
bloodstream. Feezel makes clear that such a linkage must be shown in order to prove the
element of intoxication. The majority suggests that the jury could infer intoxication, but without
evidence of the metabolites half-life it is speculative to conclude it is sufficient. The majority
also notes that defendant was driving the wrong way on a one-way street, an action that can, and
does, occur without any involvement of drugs. The arresting officer’s testimony provides no
other support for the conclusion that defendant was intoxicated.



                                               -1-
        Accordingly, I would reverse defendant’s conviction under MCL 257.625(4)(a) and
dissent as to that issue. In all other respects I concur.



                                                     /s/ Douglas B. Shapiro




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