Firearms and Preliminary Breath Tests in Michigan

by: Matt Newburg

02/19/2016 08:53 AM EST

The Michigan Court of Appeals in People v Booker have issued a published opinion on the suppression of Preliminary Breath Tests (PBT’s) in Michigan.  Mr. Booker was charged with one count of possession of a firearm while being under the influence.  The District Court suppressed the PBT results and the Court of Appeals has reversed that decision. 

On October 31, 2015 Farmington Hills Police Department were sent to investigate a robbery. While searching the parking lot, they found Mr. Booker and a female in the backseat of a patrol car.  Officers asked Mr. Booker to exit the car and they observed, in plain view, a number of alcoholic beverages in the car.  Mr. Booker told officers he had a concealed pistol license and also told the officers that his firearm was in the back pocket of the drivers seat.  A PBT was administered to Mr. Booker and the results were .15—nearly twice the legal limit.  The investigation revealed that Mr. Booker was not a suspect in the robbery nor did he have knowledge of why the police were there.  

Mr. Booker filed a motion to suppress the results of the PBT.  He reasoned that the vehicle code’s rule prohibiting the admission of PBT results as proof of a defendant’s intoxication must apply to MCL 750.237, the statute prohibiting possessing a firearm while under the influence.  The district court agreed with Mr. Booker finding that if “the legislature wanted to create a different admissibility standard for PBTs in cases of possession of a firearm under the influence (MCL 750.237), it would have expressly stated so.  The Circuit court agreed and upheld the suppression.  

The Court of Appeals disagreed with both the Circuit Court and the District Court.  The Court of Appeals stated:

Defendant was charged under MCL 750.237(1), which criminalizes the possession of a firearm while under the influence of alcohol. Under the statute, a police officer who has probable cause to believe that an individual has violated MCL 750.237(1) can require that individual to “submit to a chemical analysis of his or her breath, blood, or urine.” MCL 750.237(5). “The collection and testing of breath, blood, or urine specimens” shall be conducted “in the same manner that breath, blood, or urine specimens are collected and tested for alcohol and controlled-substance-related driving violations under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923.” MCL 750.237(8).

The Court of Appeals finalized its ruling by relying on People v Tracy, 186 Mich App 171.   In that case, the court held that PBTs are admissible in cases involving offenses other than drunk driving.  Therefore, according to the Court of Appeals, the Circuit Court and District Court erred in granting Mr. Bookers motion to suppress his PBT results.