In Michigan, Operating While Intoxicated (“OWI”) arrests often start with law enforcement’s stop of an allegedly intoxicated driver, questions by a law enforcement officer regarding the driver’s use of alcohol, physical field sobriety tests, and a request for the driver to submit to a preliminary breath test (or “PBT”) to determine the driver’s breath alcohol concentration ("BrAC"). This “on road” PBT device should not be confused with the large evidential breath testing device administered after the driver has been arrested, which is the DataMaster DMT in Michigan.
Michigan Preliminary Breath Test Machine (pictured below)
Michigan DataMaster DMT Machine (pictured below)
While this post is not intended to describe in detail each and every issue with these devices, the reader must be aware that the on-road PBT test is not mandatory in Michigan. Refusal to take the on-road PBT is considered a civil infraction, carrying a small fine without any points, suspension or driver’s license sanction. However, once arrested for OWI, a driver will be asked to take a chemical test to determine either BrAC or blood alcohol concentration ("BAC") most often through a blood draw or a breath test on the DataMaster DMT, which is located at the police station or jail. This chemical BAC test is mandatory under Michigan’s Implied Consent law. A driver who refuses to submit to a chemical test after arrest and that refusal is not reasonable, among other legal requirements, will be considered to have violated the implied consent law. The driver will then have his or her license suspended for 1-year and 6 points added to their license. The driver has the ability to appeal an implied consent violation to the Michigan Secretary of State within 14-days of the violation, so time is of the essence.
Michigan Law Requires that Law Enforcement Observe a Driver for 15-minutes Before Administering a Preliminary Breath Test
Sometimes law enforcement officers simply request that the driver submit to an on-road PBT to determine if the driver is above the legal limit of .08 alcohol per 210 liters of breath, without conducting any field sobriety tests. While you may think that the PBT device used by law enforcement is inherently reliable, there are a variety of factors that significant affect the accuracy of a PBT result. Think about other electronics that you use on a daily basis such as your phone, computer, as well as the electronics in your car. If these electronic devices are not properly maintained, updated/calibrated, or properly used, there are problems. This is why the Michigan State Police created specific administrative rules regarding the use and maintenance of the PBT device used by all law enforcement agencies in Michigan.
Michigan Administrative Code Rule 325.2655(2) prescribes the following specific procedure for the administration of a PBT, “a person may be administered a preliminary breath alcohol analysis on a preliminary breath alcohol test instrument only after the operator determines that the person has not smoked, regurgitated, or placed anything in his or her mouth for at least 15 minutes.” The Michigan Court of Appeals has specifically held that the purpose of this rule is to ensure that accuracy of the test results. Whether or not a PBT result is accurate is tremendously important when considering whether a law enforcement officer had probable cause to arrest a driver. Law enforcement may arrest a driver for OWI in Michigan with only the result of a PBT, irrespective of whether physical field sobriety tests were administered, provided there is probable cause for the arrest.
Recently, the Michigan Court of Appeals directly addressed the required 15-minute observation time in Rule 325.2655(2) in a published opinion that carries binding precedent on the lower courts. In that case, the defendant was involved in a two-car accident after the driver of the other vehicle ran a red light. Although the other driver was at fault for the accident, the defendant was arrested for OWI on the basis of a PBT result that indicated he had a BAC of 0.114. Importantly, the officer requested that the defendant submit to a PBT test after speaking with him for only 3-minutes. In other words, there was no where close to 15-minutes of observation time as required by Rule 325.2655(2). The Michigan Court of Appeals ultimately held that law enforcement’s violation of Rule 325.2655(2) was significant enough to call into question the accuracy of the PBT result and, consequently ordered that the PBT result be suppressed. This allowed the Defendant to file a motion in the trial court contesting whether there was probable cause for his arrest. This case is significant as it forcefully holds law enforcement accountable for compliance with rules that are put in place to ensure accuracy in the use of technology that forms the basis of an arrest. If that technology is inaccurate then there may not be probable cause for an arrest and the charges should be dismissed.
If you and/or a loved one are facing an OWI charge in Michigan, you need a lawyer intrinsically familiar with the law. Spencer Bondy has defended clients facing OWI charges in courts across the State of Michigan. He is both familiar with the law and not afraid to hold law enforcement accountable to their own rules. To ensure that you and/or your loved one receive the best possible representation, contact Spencer today.
