Roadside sobriety tests lose legal teeth

Mike Martindale
The Detroit News

Motorists stopped on suspicion of driving under the influence may have an easier time dodging charges, because lawmakers inadvertently changed the statute to preclude field sobriety tests from being used as evidence in court.

Law authorities, prosecutors and defense attorneys say state law was amended Jan. 15 to allow for a preliminary roadside analysis to determine whether a person’s demeanor and driving suggested they were likely under the influence of drugs or alcohol.

“ ‘Roadside assessment’ tests were never defined,” said Birmingham attorney Patrick Barone, who has written many articles on drunken driving law and defenses. “It is something that can be challenged before it ever goes before a jury.”

Traditionally, police administer field sobriety tests — such as reciting the alphabet, finger to nose accuracy and counting backwards — and a roadside breath analysis to drivers they suspect have been drinking or using drugs before getting behind the wheel. But due to the change in the law, the tests have lost their legal standing.

“Ironically, lawmakers were amending the statute to pave the way for future drugged driving arrests, but the bottom line is it is a poorly written law and lawmakers missed it,” Barone said. “It’s giving prosecutors fits. They see arrests and cases, which in the past may have been slam dunks, now with a low likelihood of conviction. It has made it more difficult to prosecute.”

Barone insists the amended law doesn’t make roads less dangerous — motorists can still be stopped and arrested — but it potentially decreases the likelihood of conviction.

State Rep. Dan Lauwers, R-Brockway Township, the author of the amended bill, said there was an unintended “technical” error in the amendment that he expects the Legislature will correct by the end of March.

The change was intended to give police the same arrest powers for drivers using drugs as they had for drunken drivers. Recent studies by the National Highway Traffic Safety Administration and others show motorists with alcohol in their systems had dropped by about one-third since 2007. But there has been a 50 percent increase in those operating vehicles using marijuana and other drugs during the same period.

“I have had calls from attorneys, the state prosecutors association, about this and we will be correcting it,” Lauwers said about the amended law.

“It boils down to a discrepancy related to field sobriety testing, which is not permissible in drugged driving cases but still should be for drunk driving cases. Preliminary breath tests have not been permitted (as evidence), but we were trying to exclude other testing in drugged driving cases because defense attorneys have consistently challenged them.”

Lauwers said he has not heard of any drunken driving cases being dismissed due to the change in the law.

Seeking advice

The Oakland County Chiefs of Police say patrol officers are so confused about the month-old law that the group has huddled with Oakland County Prosecutor Jessica Cooper for advice on how to proceed with new cases.

“It’s something that needs to be corrected,” said Milford Police Chief Thomas Lindberg, president of the chiefs group.

Livingston County Prosecutor William J. Valliencourt confirmed defense attorneys have been arguing that the amendment makes all evidence from sobriety testing inadmissible at trial. Valliencourt sits on committees of the Prosecuting Attorneys Association of Michigan.

“In my county, this argument has been rejected,” he said. “But at least one district judge in the state has ruled otherwise.

“The original amendment to the statute proposed allowing some kind of saliva testing for the presence of marijuana or other drugs. That part of the amendment wasn’t passed, but some of the remaining language is now being read by some to exclude most evidence in a drunk driving case.”

East Lansing 54B District Judge Richard Ball ruled this month that field sobriety tests were inadmissible as evidence to a jury in a case before him.

Ball said he agreed with a defense attorney’s opinion that barred the jury from considering evidence relating to the administration of roadside sobriety tests, because “the Legislature in its lame-duck session was given an opportunity to ‘correct’ the plain language of the statutory changes, and failed to do so.”

Raising the bar

Royal Oak interim City Attorney Mark Liss said the changes to the operating while intoxicated statute are “interesting” but “should not have any effect on the work in the field by the police officers.”

“My office’s recommendation to the police is the same as the Michigan Department of State Police, to continue what they have been doing,” he said.

The Oakland County Prosecutor’s Office declined comment on law enforcement concerns about the new law, but in an email, obtained by The Detroit News, that was sent to all of the county’s police chiefs in February, chief deputy prosecutor Paul Walton advised them the bar for evidence has been raised considerably.

“From a practical standpoint, if an officer, deputy or trooper is going to pursue an OWI investigation and request a prosecution, he/she must assume that the (field sobriety test) will not be admissible and should obtain a Breathalyzer, urine and/or blood results — by search warrant if necessary,” Walton wrote. “Breath, blood and urine test results are still admissible. Also, the FST as well as (preliminary breath tests) can be used to establish ‘probable cause’ necessary for the search warrant.”

Probable cause could be erratic driving, slurred speech, glassy eyes and, of course, the more sophisticated breath test taken at a police station that has always been a benchmark in drunken driving cases.

Sen. Rick Jones, R-Grand Ledge, chairman of the Senate Judiciary Committee, said he had not heard of any problems with the amended law but would contact the Prosecuting Attorneys Association of Michigan.

“I understand how important this can be as evidence in cases,” said Jones, a former Eaton County sheriff. “Police should have every tool they need for public safety.

“It’s not uncommon to have legislation that needs to be clarified or corrected after it becomes law,” he said. “And if there is a problem here, that’s what will be done.”

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