If Governor Snyder signs House Enrolled Bill 5385, as expected, it will become unlawful in Michigan to refuse to submit to any sort of preliminary roadside analysis, including field sobriety testing. The bill was presented to the Governor on October 7, 2014.
As of the date of this writing, Michigan law provides 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. This new law changes this law in several significant ways.
First, the new law expands the executive power through the creation and inclusion of a newly created phrase; “preliminary roadside analysis” which is now substituted in the statute for what was previously just a “preliminary chemical breath test.” 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, MCL 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).
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 however, 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.
Michigan courts will be called upon to decide the Constitutionality of this new law, and when they do so they may find it lacking. For example, what exactly is a field sobriety test? Does this phrase include 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?”
Also, what degree or amount of evidence is now required before a police officer may request field sobriety tests. Apparently, the officer must have “reasonable cause.” Michigan defines reasonable cause as less than probable cause but more than reasonable suspicion. In the context of field sobriety testing does the odor of alcohol and admission to drinking constitute reasonable cause? Or is something more needed?
Presently, an officer in Michigan does not have to have anything more than a reasonable suspicion before a driver may be ordered out of his/her car to submit to field sobriety tests. With this new law, the amount of evidence necessary to do this has actually increased.
Previously, the “reasonable cause” necessary to ask a Michigan driver to submit to a preliminary breath test was collected, in part, through the observation of the driver’s performance of the field sobriety tests. With this new law, what comes before field sobriety tests? Simple observations?
There are additional Fourth and Fifth Amendment issues to be decided as well, such as whether or not forced field sobriety tests are violation of a driver’s right against self-incrimination, or whether or not the new law creates a scenario that may give rise to an unlawful search.
Also, there is a question as to whether or not it will be necessary to give an oral advisement prior to the administration of the roadside field sobriety evaluations as the currently are for the preliminary breath test.