Preliminary Roadside Analysis: Free Motion to Suppress FSTs


Based upon the newly added provisions of MCL 257.43a and amended sections of MCL 257.625a regarding the use of preliminary roadside analysis to investigate drunk and drugged driving cases, Michigan has become the first state in the country to mandate that a person must perform field sobriety tests, but lawmakers have unwittingly opened the door for creative motion practice to exclude field sobriety tests from drunk driving cases

Failure to stand like a crane or walk like a chicken upon a police officer's command in drunk driving cases is now punishable by a civil infraction, unless the motorist is operating a commercial vehicle in which case it is actually a crime to refuse to perform these ridiculous tests. As MCL 257.625a states in relevant part:

(d) Except as provided in subsection (5), a person who refuses to submit to a preliminary roadside analysis upon a lawful request by a peace officer is responsible for a civil infraction.

. . . .

(4) A person who was operating a commercial motor vehicle and who is requested to submit to a preliminary roadside analysis under this section shall be advised that refusing a peace officer's request to take a test described in this section is a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $100.00, or both, and will result in the issuance of a 24-hour out-of-service order.

When this matter came before the Michigan House and Michigan Senate, I immediately sent emails to State Representative Dan Lauwers, who sponsored House Bill 5385 (2014), and Senator Phil Pavlov, who sponsored Senate Bill 0865 (2014). I followed up with telephone calls. Both of these lawmakers are from St. Clair County where a terrible drugged driving accident spurred them to sponsor this reckless law. Neither could be bothered or take the time to respond to me, even though I am president of the Criminal Defense Attorneys of Michigan and one of the state's most vocal DUI defense attorneys. Hard cases make bad law, gentlemen. 

As an organization, the Criminal Defense Attorneys of Michigan opposed these laws and warned lawmakers that they were making a terrible mistake.  Frankly, these laws are unconstitutional. You cannot force a person to perform field sobriety tests. Pennsylvania v. Muniz, 496 U.S. 582 (1990). Moreover, these laws implicate the Americans With Disabilities Act. How can a paraplegic perform the Walk and Turn or the One Leg Stand? Will a person diagnosed with dyslexia, who has difficulty with phonological awareness, phonological decoding, and auditory short-term memory be required to recite the alphabet and count backward? Are those so-called "tests" that were wholly invented by police officers even remotely accurate at predicting impairment? 

The worst aspects of the bills were finally gutted before final passage. The original bill would have resulted in a one-year suspension and six points being added to a person's license for refusing to submit to a roadside saliva test for drugs, something that no one in the scientific community could support as forensically sound.  You can read all about saliva testing for drugs and alcohol and oral fluids testing on my site. 

Public Act 315 became effective on January 12, 2015. It claims to compel performance of a preliminary breath test (PBT) and field sobriety tests. These are collectively referred to as "preliminary roadside analysis" contained in the provisions of MCL 257.625a. The final language swapped out PBT for "preliminary roadside analysis." But a PBT is not admissible into evidence because it is considered too unreliable, and this has been longstanding law in Michigan. The statute mimics earlier versions of the PBT law and limits the introduction of these tests, stating in relevant part that:

(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.

(ii) 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).

Because lawmakers included these changes under the old PBT statute, field sobriety tests, while mandatory, are no longer generally admissible.  And here's the best part: I am freely sharing this motion with every one of my closest criminal defense attorney friends, which number around 800 criminal defense lawyers. I am also sharing it with you here online, so feel free to make good use of this motion.

Sgt. Perry Curtis, head of the Michigan State Police Alcohol Enforcement Division, agrees that field sobriety tests are no longer admissible. He has confirmed that judges in Berrien County, Jackson County and Lansing have suppressed field sobriety tests as a result of the new statutory language.