More Drugged Driving Arrests – Changes in Michigan Law

┬áBurdens of proof are phrases heard often on TV or in movies. Rarely,however, are they used correctly. “Proof beyond a reasonable doubt,” “probable cause,” “reasonable suspicion” are used as the thresholds for government action, at least when dealing with criminal law.

MCL 257.625a is being changed. Michigan law has permitted police officers to compel drivers to submit to a preliminary breath/chemical test if he/she had reasonable suspicion to believe the person was operating under the influence or drugs or alcohol. The officer would smell alcohol or make other general observations, then ask the driver to voluntarily perform certain field sobriety tests (FST) then the test. Note that while most never would have suspected these were voluntary, drivers could have refused to conduct them.

With alcohol being suspected, the officer could easily conduct a preliminary breath test (PBT). With drugs, it was a bit more difficult as a PBT could not be done to detect the drug. Questions by the officer and responses by the driver or searches producing a controlled substance was often needed. It’s the PBT or other evidence that provide the probable cause to arrest the person and take the driver to jail to conduct the actual DataMaster test or to the hospital for a blood draw.

Now, the law permits the officer to use either the PBT for alcohol or simply the FST for alcohol or drugs to establish enough for the arrest. The change is that the officer can now force the taking of FSTs. Refusing to take a PBT has for several years resulted in an additional charge. Now, refusing the FST can result in a civil infraction.

This is more interesting than it may seem. Rarely is there any objective way to fact check and analyze the officers conducting of the FSTs and reported conclusions. Few police departments have operable video equipment on their cars. Thankfully, this is why the PBT and FSTs are inadmissible at trial; yet, these tests are still used to justify the arrest.