Last October, Michigan’s law makers presented a bill to Governor Snyder, which, among other things, made it unlawful to refuse not just the preliminary breath test (PBT), but also any field sobriety test requested by the officer.  The law change meant that suspects could no longer voluntarily refuse tests like the alphabet or walk and turn without being issued a ticket. Specifically, PA 315 removed the phrase “preliminary breath test” and replaced it with the new phrase “preliminary roadside analysis.”

The Act then went on to define “preliminary roadside analysis.”1 According to the Act, a preliminary roadside analysis specifically includes a PBT and the “observation of a field sobriety test.”  It was claimed that the observation of these unspecified field sobriety tests would allow police officers to determine the presence of alcohol, a controlled substance, any other intoxicating substance, or any combination of those substances, in a driver's body.2

Unknown to the Legislature, the Act also effectively suppressed the presentation of field sobriety testing evidence during trials.  Because PBT results had always been inadmissible at trial, when the language was changed from “preliminary breath test” to “preliminary roadside analysis,” the results of a “preliminary roadside analysis” also became inadmissible.  Since field sobriety tests were included in the definition of “preliminary roadside analysis,” this same law inadvertently made those same field sobriety tests inadmissible at trial.3

This issue was immediately pointed out in the October 2014 SADO Newsletter.4 The Prosecuting Attorneys Association of Michigan (PAAM) also took notice and attempted to fix the law.  However, by the end of the year, the Legislature refused to make changes.  Upon the effective date of the Act, the defense bar immediately began filing motions seeking to have any field sobriety tests in a drunk driving case suppressed.  Most attempts were successful, which led to great plea offers in many circumstances.

Unfortunately, it was only a matter of time until the full impact was realized by the Legislature.  Effective April 9, 2015, Michigan’s drunk driving laws were essentially put back to where they were prior to the October 2014 amendment, meaning field sobriety tests are again admissible at trial.  However, instead of changing the law back to its pre-October 2014 version, the Legislature again utilized a new term: “preliminary chemical breath analysis.”  The new definition removes the observation of field sobriety tests, which means they are no longer excluded from trial.   It also limits the testing to a chemical breath analysis, which seems to preclude the use of roadside saliva testing, such as with the Drager 5000.  This may be another unintended consequence of imprecise and ill-considered language usage.

Michigan’s lawmakers have shown a knack of late for drafting bad laws.  In our most recent special election, prop one was defeated by the largest margin of any proposition in modern history.  Perhaps they will learn a lesson and consult with the experts before drafting, voting on and presenting bills to Gov. Snyder.

The Act that ostensibly made field sobriety tests inadmissible had an effective date of January 15, 2015.  The Act reversing that change appears to have been given immediate effect, specifically the date of the Governor’s signature, which was April 9, 2015.  The question then is, what happens to those cases with an arrest date between the two?  In attacking the suppression of field sobriety tests, many prosecutors steadfastly argued that the law was not retroactive to arrests made prior to the effective date of the amendment.  It will be interesting to see if those same prosecutors take a contrary position with this new amendment.  An argument can be made that statutes are presumed to operate prospectively unless a contrary intent is clearly manifested.5

There is also the issue of retroactivity.  The Supreme Court tests retroactive legislation against three constitutional standards: due process, equal protection of the law, and impairment of the obligation of contracts. 6  With this particular law, it is the constitutional standard of due process that might be adversely impacted. A defendant’s right to due process may be violated when “‘[t]he retroactive application of an unforeseeable interpretation of a criminal statute’” works to the defendant’s detriment. 7 Considering how poor performance on field sobriety tests may adversely impact an accused, this factor is certainly satisfied.

However, a defendant is not “deprived of ‘due process of law in the sense of fair warning that his or her contemplated conduct constitutes a crime’” when judicial interpretation of an applicable statute does not have “the effect of criminalizing previously innocent conduct.” 8  In this particular instance, it would appear that the retroactive application may actually decriminalize certain activity in that a driver is no longer legally obligated to submit to field sobriety tests other than the preliminary breath test.

An argument can be made that depending on how the law and its impact are interpreted, the retroactive application violates due process.

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 distinguish himself among his peers.  He can be reached at: rramsayer@baronedefensefirm.com

Endnotes

1.  PA 315 (2014) (defining “preliminary roadside analysis” under the new section M.C.L. 257.43a.)
2.  Id.
3.  Barone & Ramsayer, “Recent Amendments to Michigan OWI Law Pave Way for More Drugged Driving Arrests.” Criminal Defense Newsletter, Volume 38, Number 1 (October 2014); https://www.sado.org/cdn/10404_38cdn01.pdf.
4.  Id.
5.  Franks v. White Pine Copper Division, 422 Mich. 636, 671 (1985).
6.  Slawson, Constitutional and Legislative Considerations in Retroactive Lawmaking, Cal. Law Rev., Vol. 48, Issue 2 (1960).  Internal citations omitted.
7.  People v. Barbara Johnson, 302 Mich. App. 450 at 464 (2013) (citation omitted).
8.  Id. at 465, quoting Bouie v. City of Columbia, 378 U.S. 347, 355 (1964) (emphasis omitted).
 

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