Improper Police Arrest

It may be possible to have your Michigan DUI dismissed based on a bad arrest. In Michigan, a drunk driving arrest must be supported by probable cause.[1] When thinking about probable cause, and more generally of the propriety of the arrest, it is helpful to go back to the elements of a drunk driving case.  According to the jury instructions:

To prove that the defendant operated while intoxicated [or while visibly impaired], the prosecutor must prove each of the following elements beyond a reasonable doubt:

(1) First, that the defendant was operating a motor vehicle [on or about (state date)]. Operating means driving or having actual physical control of the vehicle.

(2) Second, that the defendant was operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles.

(3) Third, that the defendant was operating in _______ (location/jurisdiction).

Here we see several possible probable cause/arrest issues.  The first issue is one of operation, and this issue is discussed in detail below.

There may also be an issue related to the arrest based on the second element: was the defendant operating on a public highway?  The same is true of the third element, which is that of jurisdiction.  If the police fail to collect enough evidence at the roadside to believe that the defendant was either on a public highway or in the appropriate jurisdiction, then there may be an invalid arrest.

When attacking the drunk driving arrest however, the majority of time the analysis will be whether or not, (conceding the other elements), the police collected enough information to believe that the driver was probably impaired or intoxicated.  Thus, to attack the validity of the arrest usually means to either attack the validity of the field sobriety tests, the validity of the preliminary breath test, or both.  Field sobriety tests are discussed in detail below.

Attacking the PBT

In Michigan an arrest can be based on the results of the breath test alone.  According, if a roadside breath test is given, then the only way to effectively attack the validity of the arrest is to attack either the administration of the breath test itself, meaning its foundation, or to argue that the police officer did not have “reasonable cause” to administer it.

This contention is based on MCL § 257.625a(2); MSA 9.2325(1)(2), which provides, in pertinent part:

(2) A peace officer who has reasonable cause to believe that a person was operating a vehicle upon a public highway or other place open to the public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state and that the person by the consumption of intoxicating liquor may have affected his or her ability to operate a vehicle,

*     *     *     may require the person to submit to a preliminary chemical breath analysis.

(Emphasis added).

1. No “Reasonable Cause”

People v. Bloyd, 416 Mich. 538, 554; 331 NW2d 447 (1984) indicates that reasonable cause is something less than probable cause, but substantially more that a reasonable suspicion.  Id. at 548.  If no field sobriety tests were given, or they were given but given improperly, then it may be possible to have the PBT suppressed on this basis alone. Thus, to show there was no reasonable cause we must again address the validity of the field sobriety tests.

2. Improper Foundation

Attacking the foundation of a preliminary breath test is identical to attacking the foundation of an evidentiary breath test.  This concept is discussed in detail below.  As it related to the preliminary breath test we have the following foundational issues:

1.      Operator must be properly trained: (a) Preliminary breath alcohol test instruments shall be operated only by  appropriate class operators pursuant to R 325.2658(4).

2.      Operator must observe for 15 minutes: (b) A person may be administered a breath  test  on  a  preliminary  breath alcohol test instrument only after it has been determined that the person has not smoked, regurgitated, or placed anything in his or her mouth for at least 15 minutes.

3.      Machine Must be Cal-Checked 1-Time per Month: (c) A preliminary breath alcohol test instrument shall be verified for accuracy at least monthly, or more frequently as the department may require, by an appropriate class operator pursuant to R  325.2658(4).

The above issues are well worth raising because if the roadside breath test can be suppressed, then it may well be possible to have the entire drunk driving case dismissed based on an unlawful arrest.

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