Arresting drunk drivers is easy for most police officers.  They nearly always smell of booze and when combined with an easy to administer roadside breath test there is usually little doubt about levels of intoxication.  The same cannot be said of drugs.  Many drugs produce no noticeable odor whatsoever, and since the science of roadside drug testing is still nascent, drugged driving arrests can sometimes amount to a lot of guesswork.

Michigan Public Act 315, of the 2014 Legislative Session, which amends M.C.L.  257.625a, is intended to help officers in the field make more drugged driving arrests.  Whether it will help – or perhaps even hurt – these efforts remain to be shown.  This Act, combining House Enrolled Bill 5385 and Enrolled Senate Bill 863, was presented to the Governor on October 7, 2014.  Signed on October 14, 2014, the Act will become effective on January 12, 2015.

Michigan law had provided that a police officer may require a driver to submit to a preliminary chemical breath analysis if the officer has reasonable cause to believe that the person was operating a motor vehicle while intoxicated or impaired.1  This new Act changes the current law in several significant ways.

Specifically, the Act modifies the manner in which the police will investigate drivers believed to be under the influence of alcohol or drugs.  Previously, the police would smell alcohol, administer field sobriety tasks such as walk and turn or one leg stand, and then would administer a preliminary breath test.

The new Act eliminates “preliminary breath test” in favor of a new phrase “preliminary roadside analysis.”  The Act provides that this new phrase refers to “the on-site taking of a preliminary breath test from the breath of a person or the performance and observation of a field sobriety test for the purpose of detecting the presence of drugs or alcohol.” 2
According to the Act, preliminary roadside analysis allows police to determine the presence of alcohol, a controlled substance, any other intoxicating substance, or any combination of those substances, in a driver's body.

It also authorizes a peace officer to actually require a driver to submit to a preliminary roadside analysis if the officer had reasonable cause to believe that the person’s ability to drive was affected by his or her consumption of alcohol, a controlled substance, or another intoxicating substance, or a combination of them. 3

A preliminary roadside analysis now includes both a preliminary breath test or the performance and observation of any field sobriety test so long as these are administered with reasonable cause, and:

for the purpose of detecting the presence of any of the following within the person’s body:
(a) Alcoholic liquor.
(b) A controlled substance, as that term is defined in section 7104 of the public health code, 1978 PA 368, M.C.L. 333.7104.
(c) Any other intoxicating substance, as that term is defined in section 625.
(d) Any combination of the substances listed in subdivisions (a) to (c).4

This is a significant change in the law because previously an officer could not force a person to take field sobriety tests under any circumstances.  Now, failing to submit to field sobriety tests will be a civil infraction in Michigan.  A violation of this new law is punishable by the payment of a fine only.  There is no driver license sanction associated with a refusal to take field sobriety tests.  However, this still leads to a coercive result forcing residents to perform tests that have previously been entirely voluntary.

Perhaps the biggest, and likely unintended, change in the law will be the conduct of trials in OWI cases.  Specifically, the new Act changes the language from “preliminary breath test” to “preliminary roadside analysis” in M.C.L. 257.625a(2)(b).  That amended section states:

(b) The results of a preliminary roadside analysis are admissible in a criminal prosecution for a crime enumerated in section 625c(1) or in an administrative hearing for 1 or more of the following purposes:

(i) To assist the court or hearing officer in determining a challenge to the validity of an arrest. This subparagraph does not limit the introduction of other competent evidence offered to establish the validity of an arrest.

(i) As evidence of the defendant’s breath alcohol content, if offered by the defendant to rebut testimony elicited on cross-examination of a defense witness that the defendant’s breath alcohol content was higher at the time of the charged offense than when a chemical test was administered under subsection (6).

(iii) As evidence of the defendant’s breath alcohol content, if offered by the prosecution to rebut testimony elicited on cross-examination of a prosecution witness that the defendant’s breath alcohol content was lower at the time of the charged offense than when a chemical test was administered under subsection (6) 5

Prior to the new Act, this section only applied to the admissibility of a preliminary breath test at trial.  Under Michigan case law, it has been well settled that preliminary breath tests are not admissible, barring one of the enumerated exceptions. 6  Currently, any reasonably informed defense attorney will easily avoid questions that might cause an exceptions to be enacted. Thus, preliminary breath test results largely remain inadmissible at trial.

As stated, under the new law, a preliminary roadside analysis is specifically defined to include the “observation of a field sobriety test.”  The change in the law to include the observations of field sobriety tests, a yet undefined term, has significant impact on the introduction of evidence at trial.  Because the law is ambiguous in regard to what constitutes a field sobriety test, it should be assumed that any test given, which may indicate the suspect’s level of impairment, will be included.  This leaves only the most base level observations as admissible evidence.  Barring a careless error by the defense attorney, it can be argued that cases before a jury will now be limited to the officer’s observations of driving, the observation of a suspect’s condition, and then an acknowledgement of arrest.  If judges agree to strictly follow this new law, a jury’s task at trial will be much more difficult.  This is because juries will be asked, for example, to determine a defendant’s level of intoxication/impairment based upon the jury instructions that refer to “manner of walking” while hearing perhaps no evidence in this regard.7  Without the field sobriety testing in evidence, a breath/blood alcohol result will have less weight.  This is likely good for the defense because one may surmise that many jurors find a correlation between performance during field sobriety testing and a breath/blood alcohol result.

It will be interesting to see how the trial courts deal with this apparent evidentiary bar.  This is not the only legal issue raised by the amended language. Michigan courts will be called upon to decide the overall Constitutionality of this new law, and when they do so they may find it lacking.

For example, as the amendment fails to provide a definition, what exactly is a field sobriety test?  Is this only one of the three standardized field sobriety tests or might it include recitation of the alphabet, counting backwards, picking up coins, or any other “field sobriety task” conjured up in the imagination of a police officer?  Perhaps the law is simply “void for vagueness?”  This will potentially have large implications, as the more liberal the definition of field sobriety testing, the more evidence could be excluded at trial.

Also, what degree or amount of evidence is now required before a police officer may require field sobriety tests.  An officer in Michigan does not have to have anything more than a reasonable suspicion before a driver could be ordered out of his/her car and asked to submit to field sobriety tests. 8  In People v. Rizzo, the court held that odor of intoxicants alone, was enough to satisfy a reasonable suspicion. 9  However, the Rizzo Court indicated that “[i]n order to confirm or dispel such reasonable suspicions…a police officer may instruct a motorist to perform roadside sobriety tests. 10  With this new Act11, the amount of evidence necessary to do this has actually increased.  This is because the new Act requires “reasonable cause” before the tests are required. 12 Michigan defines reasonable cause as less than probable cause but more than reasonable suspicion. 13 Therefore, the officer must have more than an odor of intoxicants to require these tests.  How much more still remains to be seen.

There are additional Fourth and Fifth Amendment issues to be decided as well, such as whether forced field sobriety tests are a violation of a driver’s right against self-incrimination, or whether the new law creates a scenario that may give rise to an unlawful search.

Also, there is a question as to whether it will be necessary to give an oral advisement prior to the administration of the roadside field sobriety evaluations as there currently are for the preliminary breath test.

In the companion bill, the Michigan Code of Criminal Procedure was also amended with respect to a defendant who had submitted to and failed a preliminary roadside analysis that detected the presence of alcohol, a controlled substance, and/or other intoxicating substance. The court is now authorized to release a driver who has failed a “roadside sobriety test” subject to conditions necessary for the protection of the public.  What exactly is a failure?  How is this defined?  Has the court inadvertently imposed a requirement that field sobriety tests be standardized and subject to strict compliance according to the National Highway Traffic Safety Administration’s Standardized Field Sobriety Test Program?

After a driver “fails” a field sobriety test, the court must also inform the defendant that, as a condition of release, he or she could not operate a motor vehicle under the influence of alcohol, a controlled substance, and/or another intoxicating substance.  If he does so, then he is subject to warrantless arrest and bail revocation if he or she violates that condition.

Also, with respect to a defendant who is released subject to conditions necessary for the protection of another person, the new law requires the judge or magistrate to order the issuing court or (as currently provided) a law enforcement agency to enter the order into LEIN.

While the proponents of these changes to Michigan’s OWI law are touting them as the next great thing for the aggressive enforcement of intoxicated driving laws, it may turn out that the changes actually make it more difficult to convict alleged intoxicated drivers.  If that turns out to be true, then look for more quick changes to the always dynamic drunk driving laws in Michigan.

by Patrick T. Barone &
Ryan Ramsayer

Patrick T. Barone is an adjunct professor at Cooley Law School where he teaches "Drunk Driving Law and Practice."  Mr. Barone is also the co-author of two books on DUI-related issues, including Defending Drinking Drivers (James Publishing), a well-known and highly respected multi-volume national legal treatise.  He is a frequent lecturer on trial practice and drunk driving defense tactics. He can be contacted on the web at:www.baronedefensefirm.com.

Ryan Ramsayer is a senior associate at the Barone Defense Firm where he has been employed since 2009.  However, his dedication to defending the rights of his fellow citizens began long before he began practicing law. As a member of the United States Marine Corps Infantry, he honorably served in Afghanistan. Mr. Ramsayer now uses his combat-tested determination to fight on a new battlefield—the courtroom; where he continues to distinguished himself among his peers.  He can be reached at rramsayer@baronedefensefirm.com.

Endnotes

1.  See M.C.L. 257.625a
2.  PA 315 (2014)(defining “preliminary roadside analysis” under the new section M.C.L. 257.43a.)
3.  Id.(amending M.C.L. 257.625a(1) to include “preliminary roadside analysis.”)
4.  Id.
5.  Id.
6.  See People v. Keskinen, 177 Mich. App. 312, 318-319 (1989) (Holding: “that the trial court in this case erred in admitting into evidence the result of defendant's preliminary breath test.”)
7.  See Michigan Model Jury Instruction 15.5:
“(1) What was the mental and physical condition of the defendant at the time that [he/ she] was operating the motor vehicle? Were the defendant’s reflexes, ability to see, way of walking and talking, manner of driving, and judgment normal? If there was evidence that any of these things seemed abnormal, was this caused by drinking alcohol?”
8.  See People v. Rizzo, 243 Mich. App. 151 (2000).
9.  Id.
10.  Id. at 161, 325.
11.  See M.C.L. 257.625a
12.  PA 315, supra.
13.  Reasonable cause is something less than probable cause, but substantially more that a reasonable suspicion. People v. Bloyd, 416 Mich. 538, 554 (1982).
 
 

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