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Court of Appeals Rules Breath Test Inadmissible in MIP Case

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Richard L. Hillman
Foster Swift Municipal Law News
October 2009

The Michigan Court of Appeals recently struck down a city ordinance that required a person suspected of being a minor who has possessed or consumed alcohol (MIP) to submit to a preliminary breath test (PBT) upon request of a police officer. City of Troy v Emran Chowdhury, ______ Mich App ______, (Case No. 288696, Sept. 10, 2009). This decision may impact how municipalities with similar ordinances pursue MIP prosecutions.

In Chowdhury, City of Troy police officers detained a group of young adults on suspicions that they had consumed alcohol. The officers then gave a PBT to the young adults, including the defendant. The officers did not obtain a search warrant or ask for consent before issuing the PBT. After the PBT results showed the defendant had a blood alcohol content of 0.25%, the officers charged him with violating the city’s MIP ordinance. The city’s MIP ordinance stated that a minor may not consume or possess alcohol; that a city police officer "who has reasonable cause to believe a person less than 21 years of age has consumed alcoholic liquor may require the person to submit to a preliminary chemical breath analysis;" and that a minor who refuses to take a PBT is responsible for a civil infraction.

The defendant moved to suppress the PBT results. The district court ruled the ordinance was unconstitutional and suppressed the PBT results. The Michigan Court of Appeals upheld those rulings. In striking down the city ordinance, the Court first ruled that the ordinance was unconstitutional on its face given that two prior federal court decisions had reached the same conclusion involving substantially similar MIP ordinances. Next, Court held that the PBT was an unreasonable search of the defendant since the police officers did not have a warrant and did not obtain the defendant’s consent. In rejecting the argument that the defendant consented to the search, the Court explained that the officers did not ask for the defendant’s consent and in any event a minor’s mere acquiescence to the officer’s claim of lawful authority is not consent.

After Chowdhury, Michigan municipalities should perhaps reconsider their approach in handling MIP situations. Many Michigan municipalities prosecute MIP violations under similar ordinances as at issue in Chowdhury, as that ordinance was nearly identical to language in the Michigan Liquor Code that requires a minor to submit to a PBT upon an officer’s request based on reasonable cause. However, under Chowdhury, a MIP ordinance that requires a minor suspected of consuming alcohol to give a PBT upon police officer request is very likely invalid. So prosecuting under such an ordinance is risky at best. One potential option is for a municipality to retain its MIP ordinance but simply delete language from its MIP ordinance that says that "if a minor refuses a PBT, then the minor will be responsible for a civil infraction."

Also, Chowdhury does not rule out the possibility that an officer could validly obtain a minor’s consent to administer a PBT to a minor suspected of consuming alcohol and then use the PBT’s results in a MIP prosecution. But to be valid, consent must be freely and voluntarily given. Consent will not arise from a minor’s mere acquiescence to an officer’s claim that he or she can require the minor to take the PBT.

Additionally, prosecutors may now have a difficult time admitting PBT results into evidence when a defendant challenges whether consent to a breath test was voluntary. Giving the standard police instruction – that "if you refuse to submit to the PBT you will be issued a civil infraction citation" – may prevent a prosecutor from establishing that consent to a breath test was voluntary.

Finally, Chowdhury appears only to apply to MIP cases prosecuted under the theory that a defendant "consumed" alcohol, and likely does not affect prosecutions for "possession" of alcohol where an officer witnesses a minor physically possessing an alcoholic beverage. Nevertheless, prosecutors can expect to face future challenges to PBT results based on Chowdhury, particularly on MIP prosecutions involving repeat offenders, where more serious penalties, including driver’s license suspensions are imposed.

Richard L. Hillman practices criminal law, municipal law and general litigation. Richard has handled numerous MIP defense cases throughout Michigan. He has also handled MIP prosecutions in the past for several Michigan townships and cities. He can be reached at (517) 371-8129.