When Michigan drivers are stopped on suspicion of drunk driving, the officer will normally have the driver step out and perform Standard Field Sobriety Tests (“SFSTs”). As I have discussed before, these tests are to be performed in accordance with the standards of the National Highway Traffic Safety Administration (“NHTSA”) guidelines. All police officers are taught these tests: Horizontal Gaze Nystagmus (“HGN”), Walk and Turn (“WAT”), and One Legged Stand (“OLS”).
Let us assume you were stopped for speeding. This is not one of the 24 DWI Detection Clues taught by the NHTSA. Speeding, alone, is not a clue of drunk driving. The officer writes in his report that you have watery eyes and that he can “smell the odor of intoxicants.” You still cannot be arrested for drunk driving as the only thing the officer has observed is your speeding.
So, you agree to complete the SFSTs. As I have said earlier, virtually no police officer does the HGN test correctly. They are in a hurry or have already reached a conclusion that you are guilty and are simply running through the motions. Virtually every HGN test should be challenged.
In your case, you perform the SFSTs, and to the officer’s surprise, you do them fairly well. Now what?
Well, there is one step left in Michigan and that is the Portable Breath Test (“PBT”). This is a small machine, about the size of a pack of cigarettes, that the officer will ask you to blow into. The machine, itself, is not accurate enough to be admitted into evidence at a Jury Trial; however, it is normally accurate enough to tell the officer how much alcohol you have in your system. In Michigan, you are presumed to be under the influence of alcohol if your blood alcohol is .08 or above.
So the officer has you blow into the PBT and it reads .09. That is above the legal limit of .08. Most attorneys see this in a police report and inform their client that their arrest and charge were proper, without any further investigation. This is a no, no.
The Michigan State Police have rules and regulations on how to properly administer a PBT. R 325.2655(2)(b) provides that the officer has to observe the individual for at least 15 minutes before they are to administer the PBT. This is to make sure the driver has not “smoked, regurgitated, or placed anything in his or her mouth for at least 15 minutes.” This 15 minutes period is to ensure the accuracy of the test.
Time and time again I review arrest videos where officers do not wait the required 15 minutes. If the defense attorney can get an Evidentiary Hearing before Trial, you can take the opportunity to get the arresting officer on the witness stand. When the officer testifies, you try to get them to admit that they did not know if they were going to arrest your client until they saw the PBT results. Only then did they decide to arrest your client. At that point, you play the arrest video, they only observed your client for 8 minutes. The defense attorney then moves to suppress the PBT results leaving the officer just where he was before the PBT test – unsure.
Judges really hate this. The rule clearly says wait 15 minutes, but a lot of videos I have show the test administered well before 15 minutes have elapsed. Judges should quickly move to suppress the PBT results and then decide the validity of the arrest based on observed driving, and performance on SFSTs, but they rarely do this. Why? They know what my client’s blood alcohol test is and refuse to do the right thing. I currently have a case at the Michigan Court of Appeals on this issue and I am about to start another hearing on this issue at the District Court level.
Judges are rewarding bad behavior. If the police officer did the test incorrectly, the results of that test should not be admitted. Full stop. Attorneys need to have more of these hearings to keep the pressure on the Judges to do the right thing. Alfred Brandt is a criminal defense attorney who routinely challenges PBT results.
If you have a criminal case in Calhoun County, Lenawee County, Hillsdale County, Washtenaw County, Jackson County, or Ingham County, contact Mr. Brandt about your case.
The information on this website is for informational purposes only. Nothing in this blog should be taken as legal advice for an individual case. This information is not intended to form an attorney-client relationship.
