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Michigan Minor in Possession Law Ruled Unconstitutional

by ptbarone on September 15, 2009

On September 10, 2009, the Michigan Court of Appeals ruled that Michigan’s MIP (minor in possession) law was unconstitutional. The name of this new case is City of Troy v. Chowdhury.

Although the Chowdhury case addressed only the Troy MIP city ordinance by extension it applies to the state statute as well.  This is because the court found that any law that allows the police to obtain a Preliminary Breath Test (PBT) from minors without a warrant is unlawful.

The Chowdhury case is significant because it had become common practice for police around the state to order minors to take breath tests without the minor’s consent and without any other just cause or warrant exception.  These youngsters would then be charged and criminally prosecuted.

Although the law did not provide for incarceration in some courts the minors would occasionally nevertheless be jailed because they either couldn’t make their bonds or because they violated their probation.

Some lawyers called this practice of placing minors in jail for MIP unlawful.  Nevertheless, such incarceration for MIP had become common practice in Michigan’s Rochester and Bloomfield Hills District Courts.  This new Court of Appeals case may put a temporary halt to this practice.

The Chowdhury case involved a Troy City Ordinance which made it unlawful for a person under 21 years of age to have any alcohol in his or her system.  A violation of this MIP (Minor in Possession) law is a misdemeanor.

In the Chowdhury case the City of Troy police went to a house where a party was taking place believing they would find underage drinkers.  When they arrived they found a group of people leaving the party on foot. These individuals were detained and asked if they’d been drinking.  Some admitted drinking while others denied.  All of these individuals were under 21 years of age.

The Troy police separated the individuals into two groups, those that had admitted drinking and those who had denied drinking.  They were all requested to submit to a preliminary breath test (PBT).  The Troy officers did not request consent for the search.

The Troy police had threatened the defendant with jail if he did not submit to the breath test.  The Troy police also used profanity and were aggressive in their attempts to get the breath tests from the minors. One of the Troy officers administered the test to the defendant with a reading of .025, a very low breath alcohol level.  The defendant was charged with violating Troy’s MIP law.

The attorney for the defendant argued that Troy’s underlying law was unconstitutional. The district court judge held a hearing and agreed with the defense.  The Troy judge found that Troy’s MIP law was unconstitutional on its face.

The Troy judge also found that no exception to the warrant requirement had been applicable on the facts of the case. Therefore, the district court suppressed the evidence collected from defendant during the PBT.

This ruling was appealed to the Oakland County Circuit Court and the District Court judge was affirmed.  The Troy City Attorney appealed this ruling to the Michigan Court of Appeals who again affirmed the District Court.

In the Chowdhury case the Court of appeals relied on The United States District Court for the Eastern District of Michigan which had already held a substantially similar Bay City ordinance and a substantially similar state statute unconstitutional. Spencer v Bay City, 292 F Supp 2d 932 (ED Mich, 2003); Platte v Thomas Twp, 504 F Supp 2d 227 (ED Mich, 2007).

In affirming that the Troy ordinance was unconstitutional the Michigan Court of Appeals found that a PBT is in fact a search and that Chowdhury had not consented to the PBT and that no warrant exception existed.

Warrant exceptions that were suggested by the Troy City Attorney included the “special needs” exception as well as the “exigent circumstances” exception.

The exigent circumstances exception was suggested because, according to the City of Troy attorney, there was a likely dissipation of defendant’s bodily alcohol content which was an exigency that justified the warrantless search in this case.  In other words, the defendant’s blood alcohol would be gone by the time the warrant was obtained

The Troy City Attorney also argued that the “special needs” exception should be applied because there is a compelling state interest in protecting young people from the dangers of alcohol abuse and in protecting the general public from the potential consequences of alcohol abuse by young persons.

This ruling is particularly significant because many judges, including those in Michigan’s 48th District Court in Bloomfield Hills as well as Michigan’s 52-3 District Court in Rochester have ruled that the federal cases did not apply at the state district court level.  This appeals court ruling means these judges must suppress breath tests taken from minors where the minors have not consented and no other warrant exception exists.

The Chowdhury case is also far reaching because Troy City ordinance is essentially identical to the state law making MIP unlawful, as well as most other city and township ordinances. A portion of the City ordinance reads as follows:

A peace 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. A peace officer may arrest a person based in whole or in part upon the results of a preliminary chemical breath analysis. The results of a preliminary chemical breath analysis or other acceptable blood alcohol test are admissible in a criminal prosecution to determine whether the minor has consumed or possessed alcoholic liquor.

It seems unlikely that this case will be appealed to the Michigan Supreme Court and so unlawful warrantless searches of Minors breath will no longer be tolerated in the State of Michigan.

If you believe that you have been unlawfully charged with a violation of any of Michigan’s MIP laws, contact the Barone Defense Firm today for your FREE consultation.


{ 2 comments… read them below or add one }

cathy October 5, 2009 at 2:38 pm

my son was in the city of troy recieved an mip at a hotel one person refused the pbt and the were going to take him to jail so everyone got scared and took the test. went to pre-trail lawyer said to plead guilty and they did now before the sentencing the have to do pbt testing 2 ormore times a week


Fadia Faraj October 13, 2009 at 7:20 am

My son was coursed to an PBT! he’s 17 years old. He was alone with the officer and the principal of the High School. His friends were together in one room. He is the only one that got an MIC ticket! was he treated fairly???


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