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Michigan’s New Drunk Driving Law Might Be Unconsititutional

At the end of last year Michigan’s law makers presented a bill to Governor Synder which, among other things, made it unlawful to refuse not just the preliminary breath test (PBT), but also, the alphabet or walk and turn test as well.  This is because both fell under the aegis of the phrase “preliminary roadside analysis.”[i]  Specifically, PA 315 removed the phrase “preliminary breath test” and replaced it with the new phrase “preliminary roadside analysis.”

According to the Act, the preliminary roadside analysis specifically included 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.[ii]

Because field sobriety tests and preliminary or roadside breath tests were both part of a “preliminary roadside analysis,” and because PBTs had always been inadmissible, this same law inadvertently made those same field sobriety tests inadmissible at trial.[iii]

The defense bar, upon learning of the snafu, almost immediately began filing motions seeking to have any field sobriety tests in a drunk driving case suppressed.  Many were successful, while others were not.

The language of the new law was quickly corrected, and 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 once again become admissible.  It was intended that the new law have immediate effect.

Several different sections of the Michigan Vehicle Code were impacted by these changes. Here is a summary of the modifying Public Acts (as provided by Marilena David-Martin, Assistant Defender and Manager of Criminal Defense Resource Center).

Driving While Intoxicated or Impaired – Preliminary Chemical Breath Analysis

Effective April 9, 2015, 2015 PA 11 amended MCL 257.43a and MCL 257.625a to replace references to preliminary roadside analysis with preliminary chemical breath analysis. Additionally, MCL 257.43a was further amended to omit from the definition of preliminary chemical breath analysis “the performance and observation of a field sobriety test[.]” (Note: Effective January 12, 2015, 2014 PA 315 had amended various sections of the Michigan Vehicle Code by replacing references to preliminary chemical breath analysis with preliminary roadside analysis and by adding MCL 257.43a to define preliminary roadside analysis as a test to determine the presence within a driver’s body of alcoholic liquor, a controlled substance, other intoxicating substance, or any combination of these substances. 2015 PA 11 effectuated a return to the previously-used terminology for purposes of MCL 257.43a and MCL 257.625a.)

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 law that ostensibly made field sobriety tests inadmissible had an effective date of January 15, 2015.  The law 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?  An argument can be made that statutes are presumed to operate prospectively unless a contrary intent is clearly manifested [iv]

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.[v]  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.[vi] 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.”[vii]  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 is interpreted, the retroactive application violates due process.

Patrick Barone is the Founding Partner and CEO of the Barone Defense Firm. With offices in Birmingham and Grand Rapids Michigan, the Firm’s 6 lawyers, exclusively represent citizens accused of crimes involving intoxicated driving, including those cases involving injury or death.  As one of Michigan’s largest criminal defense laws firms, the Barone Defense Firm remains on the cutting edge of professional excellence. Since 2009 the Firm been included in US News & World Report’s America’s Best Law Firms. Mr. Barone has an “AV” rating from Martindale-Hubbell, is rated “Seriously Outstanding” by Super Lawyers and “Outstanding/10.0” by AVVO.  His blog is:


[i] PA 315 (2014)(defining “preliminary roadside analysis” under the new section M.C.L. 257.43a.)

[ii] Id.

[iii] Recent Amendments to Michigan OWI Law Pave Way for More Drugged Driving Arrests.” SADO Criminal Defense Newsletter/DUI Defense Column. Volume 38.1 (October 2014):14-16.

[iv] Franks v White Pine Copper Division, 422 Mich 636, 671; 375 NW2d 715 (1985).

[v] Slawson, Constitutional and Legislative Considerations in Retroactive Lawmaking, Cal. Law Rev., Vol. 48, Issue 2 (1960).  Internal citations omitted.

[vi] Johnson (Barbara), 302 Mich App at 464 (citation omitted).

[vii] Johnson (Barbara), 302 Mich App at 465, quoting Bouie v City of Columbia, 378 US 347, 355 (1964) (emphasis omitted).

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Patrick Barone

Patrick Barone

Patrick T. Barone is the Founding Partner and CEO of The Barone Defense Firm with offices throughout Michigan. Mr. Barone is the author of two books on DUI defense including Michigan DUI Law: A Citizen's Guide and the well respected two volume treatise Defending Drinking Drivers (James Publishing),a chapter in Defending DUI Vehicular Homicide Cases, 2012 ed. (Aspatore Books), an adjunct professor at the Thomas M. Cooley Law School, and a graduate of the Gerry Spence Trial Lawyer’s College. Mr. Barone has an “AV” rating from Martindale-Hubbell and since 2009 has been included in America’s Best Lawyers.

2 Responses

  1. WOW!
    So do you mean to say that it’s as if “Nothing ever happened”?
    Basically, we go back to how things were PRIOR to October 2014?

    So, Normally it happens like:
    1) Officer pulls me over for “suspicion of drunk driving”,
    2) He ASKS me to take a “Field Sobriety TEST”; then he FLUNKS me. Thus giving him “Resonable Cause”.
    3) Then, he ASKS me to take a PRELIMINARY breath test; which i blow OVER the legal limit.
    4) Then i am arrested for OWI. And i go to the station for the OFFICIAL Breath/Blood/Urine test.
    5) Now, If i REFUSE this test… i face a potential 6-points & a suspended license.

    So, Now, instead:
    1) Officer pulls me over for “Suspicion of drunk driving”,
    2) He ASKS me to take a “Field Sobriety TEST”; and i can LEGALLY DECLINE (Thus, No “resonable cause”)??
    3) Even without “RC”, he still ASKS me to take a PRELIMINARY Breath Test; which i REFUSE again; and the ONLY penalty (at this point) is a Citation/fine??

    Is that correct?

    4) I understand that he can STill INVENT some other Reason to ARREST me for OWI… but at least i can fight it with an attorney (and possibly dismiss the OFFICIAL Breath/Blood/Urine test results).

    Any insight is appreciated,

    1. First things first, the law has been set back to the way it was previously. See: Either way, you may refuse either the FSTs or the PBT. Currently there is no violation of the law in refusing FSTs in Michigan, and just a fine, no points or DLS in Michigan for refusing PBT. As you suggested, it’s likely the Officer will still arrest you, and ask you to submit to test back at station. If you’d like more details, your best bet is to speak with a qualified Michigan DUI lawyer.

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