In The News

In The News

Tuesday, May 28, 2013

PBT Suppressed Due to Constitutional Violation

By Michael Nichols
Categories: Josh Covert

Attorney Joshua M. Covert recently represented a client who was facing a charge of minor in possession of alcohol (MIP) at hearing regarding a motion to suppress evidence.  The evidence Mr. Covert sought to suppress was the results of a preliminary breath test (PBT).   Mr. Covert brought the motion before the Mason county district court because his client had not consented to take the PBT.  Consent in a case involving a PBT is important because Michigan courts have determined that a PBT is considered a search under the fourth amendment to the United States Constitution.  Police officers are required obtain a search warrant for a PBT search unless one of the warrantless exceptions apply.  In this case, it was alleged that the officer had obtained the client’s consent to submit to the PBT which is one of the warrantless exceptions. 

Mr. Covert first questioned the police officer regarding his recollection of the incident.  Mr. Covert was able to demonstrate to the court that the officer did not have an accurate recollection regarding how many times he had administered a PBT to Mr. Covert’s client.  The officer also was asked about why he did not record or document the client’s consent to which the officer’s only answer was that his audio recording device had been broken for some time. 

Next, Mr. Covert’s client took the stand and informed the court that he did not consent to the PBT.  In fact the client testified that he was never even asked to take the test.  The client said that he was instructed to take the test and that he did not feel that he could refuse it. 

After taking testimony, Mr. Covert began his oral argument reminding the court that the burden of proof was on the prosecutor to show that the search was reasonable.  Mr. Covert pointed out to the court that there was conflicting testimony and that the officer did not seem to remember major details about the incident and that his memory regarding the consent was not reliable.  After granting Mr. Covert’s motion the court then spent some time instructing the officer on how important it was to have equipment like the audio recorder working properly.  The court also went on to say to the officer that it is important to testify with certainty and that if he wasn’t certain something happened than he needed to say so. 

The client walked away from court happy, he now knows that one of the key pieces of evidence against him cannot be used at trial.  If you are charged with MIP and did not consent to a PBT call the Nichols Law Firm and speak with attorneys who uphold the constitution.  Call 517-432-9000.

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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.