In The News

Friday, March 5, 2010

Just Say "NO" to Taking a PBT

By Michael Nichols
Categories: Drunk-Driving

Law enforcement can no longer require someone to take a preliminary breath test (pbt) in the State of Michigan when investigating a potential violation of the minor in possession (MIP) statute. In People v Chowdury, 285 Mich App 509 (2009), the Court of Appeals adopted prior rulings in 2 cases by a federal judge in Bay City. That ruling held that the administration of a pbt is a search for purposes of the 4th Amendment. The ruling also held that a police officer must have either a search warrant or an exigent circumstance in order to require a citizen to submit to a pbt.

Exigent circumstances do not include the dissipation of the evidence. Historically, officers have argued that if they wait to obtain a warrant then, the evidence of a crime that the warrant seeks to secure is going to disappear in a case in which the crime is the consumption of alcohol. However, US District Judge David Lawson ruled that is not an exigency as defined by the 4th Amendment jurisprudence established since the adoption of the exclusionary rule. A minor in possession charge is just that: a minor charge.

The brilliance of the opinions from Judge Lawson in both of the cases on which he ruled is that it does not mean that prosecutors are going to be shut down in going after a conviction on an MIP. The officer can still testify to all of her observations regarding evidence of impairment. The only problem in that theory is this: the minor in possession statute specifically says that an officer may require a suspect to submit to a pbt if the officer is investigating a violation of the statute. The judge held specifically that, to the extent that the statute specifically proscribes an unconstitutional search, the statute is unconstitutional. The legislature has yet to re-write the law to fix the problem.

Why not argue that no one can be charged with MIP because the Michigan Statute is unconstitutional.

Here is the offending provision:
A peace officer who has reasonable cause to believe a minor has consumed alcoholic liquor or has any bodily alcohol content may require the person to submit to a preliminary chemical breath analysis. A peace officer may arrest a person based in whole or in part upon the results of a preliminary chemical breath analysis. The results of a preliminary chemical breath analysis or other acceptable blood alcohol test are admissible in a criminal prosecution to determine whether the minor has consumed or possessed alcoholic liquor or had any bodily alcohol content. A minor who refuses to submit to a preliminary chemical breath test analysis as required in this subsection is responsible for a state civil infraction and may be ordered to pay a civil fine of not more than $100.00.

Judge Lawson said:
“Nor does the statute require that any of the recognized exceptions to the warrant requirement exist before the police officer compels a minor to submit to a breath test. The state defendants point out that a warrantless search can pass constitutional muster if exigent circumstances exist, that is, “situations where real immediate and serious consequences will certainly occur if a police officer postpones action to obtain a warrant.”

The conclusion is inescapable here as well that section 436.1703(6) authorizes police officers to perform a search of minors without a warrant or a legal excuse for not obtaining one, and therefore the statute “endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment.” Warshak, 490 F.3d at 477. The statute, Michigan Compiled Laws § 436.1703(6), therefore is unconstitutional on its face. To the extent that the state defendants' defense is based on the validity of this statute, it must fail.”
Platte v. Thomas Tp.504 F.Supp.2d 227 E.D.Mich.,2007.

The Michigan Court of Appeals adopted the Judge’s reasoning. The Court declared unconstitutional a city ordinance in Troy, that was similar to the statute statute. Therefore, there is no question that the pbt for an mip is doa:

"The PBT administered to defendant in this case constituted a search within the meaning of the Fourth Amendment, to which defendant did not consent. None *528 of the exceptions to the search warrant requirement applied, and the police officers were accordingly required to seek and obtain a valid search warrant before administering the PBT to defendant. The district court did not err by ruling that Troy Ordinance § 98.10.03 is unconstitutional on its face or by suppressing the evidence collected from defendant during the warrantless PBT search. Nor did the circuit court err by denying the City's application for leave to appeal."

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.