Michigan Drunk Driving Law Changes....In Favor of the Driver?

Michigan Public Act 315, of the 2014 Legislative Session, which amends M.C.L. 257.625a, was intended to help officers make more drugged driving arrests. But the new law, which was effective January 12, 2015 is making things more difficult for prosecutors.

Before the amendment, Michigan law permitted a police officer require a driver 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. Establishing reasonable cause meant the police would smell alcohol, administer field sobriety tests and then would administer a preliminary breath test. The new law eliminates “preliminary breath test” in favor of a new phrase “preliminary roadside analysis.”. Preliminary Roadside Anhalysis 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.” Now, the 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.

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. The biggest change lies in the language which changed from “preliminary breath test” to “preliminary roadside analysis” The amendment is very clear and provides:

(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)

Prior to this change, preliminary breath test results largely remain inadmissible at trial. 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, has an impact on the trial. The law does not define what constitutes a field sobriety test, so it can be argued that cases before a jury are limited to the officer’s observations of driving, the observation of a suspect’s condition, and then an acknowledgement of arrest. Without the field sobriety testing in evidence, a breath/blood alcohol result will have less weight.

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