Successfully Suppressing Breath and Blood Alcohol Tests Results

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Successfully Suppressing Breath and Blood Alcohol Tests Results

Needless to say, a breath and blood alcohol tests with a result of .08 or above is one of the most critical and damaging pieces of evidence in any prosecution for operating while intoxicated (OWI).

From the defendant’s perspective, challenging the admissibility of breath and blood alcohol tests must be the top priority of his or her attorney in developing a successful defense strategy. But the question is: What is the most effective way to challenge these test results for suppressing breath and blood alcohol tests.

Traditionally, most defense challenges to the admissibility of evidential breath and blood alcohol test results focus on the actual testing procedures and protocols. For example, in Michigan virtually all individuals arrested and charged with OWI will be asked to submit to a breath test on a DataMaster DMT.

The Michigan Administrative Code contains many regulations that govern how the device is to be used and maintained. There are also regulations that relate to the classification(s) of law enforcement personnel in terms of their respective qualifications to administer evidential breath tests on the DMT or to service the device and check it for accuracy.

Many defense attorneys will challenge the testing procedures by pointing out the failure of law enforcement to strictly follow the administrative regulations in administering the breath and blood alcohol tests or servicing the device. However, such challenges, even if successful, rarely result in a ruling where the court finds the breath and blood alcohol tests results to be inadmissible and orders that they be suppressed. Indeed, many such challenges result in the court finding that any particular violation of an administrative regulation governing the testing procedure goes to the weight rather than the admissibility of the evidence.

So the key is to mount a challenge to the admissibility of the breath and blood alcohol tests that has the best chance of resulting in a suppression order. This would make it extremely difficult, if not impossible, for the prosecution to proceed to trial. I have successfully mounted such challenges on behalf of numerous clients that have resulted in complete dismissals of all of the drunk driving related charges. Here is a synopsis of my winning approach in these cases.

First, it’s important to understand that virtually everyone arrested for suspected drunk driving in Michigan is advised of the rights and admonishments contained in the Michigan Secretary of State Form DI-177.

That form includes the following: “I am requesting that you take a chemical test to check for alcohol and/or controlled substances or other intoxicating substances in your body. IF YOU WERE ASKED TO TAKE OR TOOK A PRELIMINARY BREATH TEST BEFORE YOUR ARREST, YOU MUST STILL TAKE THE TEST I AM OFFERING YOU.” (capitalization in the original)

Now, most OWI suspects are asked to take or took a PBT following the initial traffic stop. So when they are told by the officer that he or she “MUST” take the evidential breath test, the person typically acquiesces to the test. But acquiescence to a test is not the same as “consenting” to the test.

It has long been recognized in both federal and state law that the drawing of blood or the capturing a breath sample from a person’s body for the purpose of administering chemical tests is a search of the person subject to Fourth Amendment constraints. Moreover, searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment to the U.S. Constitution, subject only to a few specifically established and well-delineated exceptions such as consent.

The issue implicated by the Form DI-177 is whether, for Fourth Amendment purposes, a driver arrested in Michigan for OWI can be deemed to have voluntarily consented to give samples of his breath or blood after a police officer advises him that Michigan law requires him to submit to breath, blood or other bodily substance tests chosen by law enforcement.

The position I take on behalf of my client is that the capitalized portion of the SOS administrative form DI-177 is not only unauthorized by the Michigan implied consent law, but that it constitutes a constitutionally impermissible admonition that the person in custody has no right to resist the search. Stated more precisely, because such an assertion is inherently coercive any succeeding “consent” can not be deemed to have been freely and voluntarily given.

Although there are no Michigan cases directly on point, in the recent case of Arizona v. Valenzuela, the Arizona Supreme Court found that an administrative admonition form (quite similar to Michigan SOS Form DI-177) was impermissibly coercive by stating “Arizona law requires you to submit” to a breath test. The essence of the Court’s holding was that showing only that the Defendant’s consent to the chemical test was given in response to the statutory admonition fails to prove that the consent was freely and voluntarily given.

In Valenzuela, after taking the Defendant to a police station following his arrest for suspected OWI, an officer read Valenzuela an “admin per se” form, which provided, in part, that “Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by law a enforcement officer to determine alcohol concentration or drug content.”

Valenzuela cooperated and, in response to the officer’s questions, stated he understood the admonition and had no questions. He then submitted to chemical tests which indicated an illegal BAC of .20 and was charged with five counts of aggravated DUI.

Valenzuela moved to suppress the test results arguing that his consent was involuntary and that the warrantless search violated his Fourth Amendment rights. At the suppression hearing only the arresting officer testified.

The trial court denied the motion finding that, under a totality of the circumstances, Valenzuela voluntarily consented to the search. In a divided decision, the Arizona Court of Appeals affirmed and the Supreme Court then granted Valenzuela’s petition for review.

In its opinion, the Arizona Supreme Court began by noting that although the Fourth Amendment generally prohibits warrantless searches, they are permitted if there is free and voluntary consent to search. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

Consent cannot be deemed to be given “freely and voluntarily” if the subject of a search merely acquiesces to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968).

The Court focused on the facts and holding of Bumper: “In Bumper, law enforcement officers went to a home where a suspect lived with his grandmother. 391 U.S. at 546. After the grandmother opened the door, an officer announced he had a warrant to search her home, she said “Go ahead,” and the search unearthed evidence against the grandson. Id.

In a subsequent suppression hearing in the grandson’s criminal case, the prosecutor did not produce a warrant but relied solely on the grandmother’s consent to justify the lawfulness of the search. Id. The grandmother testified that “[the officer] said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word.” Id. at 547.

After quoting this testimony, the Court relied on a line of older cases to hold that the prosecution failed in its burden to show that the grandmother freely and voluntarily consented because the record demonstrated only her “acquiescence to a claim of lawful authority.” Id. at 548-49, 549 n.13 (citing Johnson v. United States, 333 U.S. 10, 13 (1948); Amos v. United States, 255 U.S. 313, 317 (1921)).

It reasoned that “[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion – – albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Id. at 550; see also Florida v. Bostick, 501 U.S. 429, 435 (1991) (noting that the Fourth Amendment is not implicated when police request and obtain consent to search “as long as the police do not convey a message that compliance with their requests is required”).

The Arizona Court then proceeded to frame the issue as follows: “[t]he issue here is whether, for Fourth Amendment purposes, a driver arrested for DUI voluntarily consented to give samples of his blood and breath after a police officer advised him that “Arizona law requires you to submit” to breath, blood or other bodily substance tests chosen by law enforcement. We hold that showing only that consent was given in response to this admonition fails to prove that an arrestee’s consent was freely and voluntarily given.

Michigan’s implied consent law (which is very similar to the Arizona implied consent law) provides that “[a] person who operates a vehicle upon a public highway…within this state is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance” when that person has been arrested for suspected OWI. MCL 257.625c.

Nevertheless, “[i]f a person refuses the request of a peace officer to submit to a chemical test…a test shall not be given without a court order, but the officer may seek to obtain the court order.” MCL 257.625d.

Our implied consent law also provides that a person arrested for suspected OWI be advised of the following:

  • That an arrested person who submits to a chemical test has the right to demand an independent chemical test by a person of his or her own choosing;

  • That the results of the test(s) are admissible in court as evidence of innocence or guilt;

  • The arrested person is responsible for obtaining the analysis of an independent test;

  • Where a person refuses the request of a peace officer to take a chemical test, one shall not be given without a court order, but the officer may seek to obtain the court order; and

  • Refusal to take the chemical test at the request of a police officer will result in the suspension of the person’s operator’s or chauffeur’s license and vehicle group designation or operating privilege, and the addition of six points to the person’s driving record. MCL 257.625a(6)(b).

As noted, the communication by the police to a person arrested for suspected OWI of these chemical test rights is accomplished through the reading of Form DI-177 which is published and distributed to police agencies throughout the state by the Michigan Secretary of State pursuant to the authorization contained in MCL 257.206. However, the current Form DI-177 contains an admonishment that is not authorized under Michigan’s implied consent law.

Nowhere does our statute provide that the chemical test advise of rights contain the admonishment: “IF YOU WERE ASKED TO TAKE OR TOOK A PRELIMINARY BREATH TEST BEFORE YOUR ARREST, YOU MUST STILL TAKE THE TEST I AM OFFERING YOU.”

Consequently, in challenging the admissibility of the breath and blood alcohol tests results, I argue that Form DI-177 contains an admonishment that clearly conveyed to my client that he or she “must take the test” which is another way of saying that he or she had no right to refuse or resist the search, which is directly contrary to Michigan and federal constitutional law.

This argument was effectively used in a recent case where I convinced the judge to suppress the .15 BrAC results and resulted in a dismissal of the OWI charge. The judge found the capitalized portion in the DI-177 to be “unnecessary and inaccurate”. He ruled that the Michigan Implied Consent Law does not contain the language in the form and stated expressly in his ruling that “[t]he capitalized language should not be included in the DI-177″.

The lesson is that successful challenges to the admissibility of breath and blood alcohol tests results following a drunk or drugged driving arrest are still possible when the issue is properly framed for the Court. A challenge based on the inadequacy of the current Form DI-177 has proven to be an effective springboard for successfully suppressing breath and blood alcohol tests for clients, regardless of the BAC level.

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