Taking the PBT Breath Test – Acquiescence as a Defense

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Taking the PBT Breath Test – Acquiescence as a Defense

Michigan DUI law requires that individuals arrested for drunk or drugged driving be advised of their chemical test rights prior to submitting to the breath or blood test. MCL 257.625a(6)(b).

It is my experience that police officers, when advising individuals of these rights, often stray from the express language contained official DI-93 or DI-177 forms. In the case of breath tests, after the advice of rights suspects often ask “what happens if I don’t take the breath test”? Most of the time the officers, when confronted with that question, say something to the effect of “then we will take you to the hospital and draw your blood”.

In those cases there is a very strong defense available that could lead to suppression of the breath test results.

According to the United States Supreme Court, a breath alcohol test is a search implicating Fourth Amendment protections. See Skinner v Railway Labor Executives’ Ass’n, where, in holding that breath (and urine) tests administered under Federal Railroad Administration regulations were Fourth Amendment searches, the Court wrote:

“We have long recognized that a “compelled intrusio[n] into the body for blood to be analyzed for alcohol content” must be deemed a Fourth Amendment search. See Schmerber vs. California, 384 U.S. 757, 767-768, 86 S.Ct. 1826, 1833-1834, 16 L.Ed.2d 908 (1966). See also Winston vs. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985).

In light of our society’s concern for the security of one’s person, see e.g., Terry vs. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968), it is obvious that this physical intrusion, penetrating beneath the skin infringes an expectation of privacy that society is prepared to recognize as reasonable.

The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interests, Cf. Arizona vs. Hicks, 480 U.S. 321, 324-325, 107 S.Ct. 1149, 1152-1153, 94 L.Ed.2d 347 (1987).

Much the same is true of the breath-testing procedures required under Subpart D of the regulations. Subjecting a person to a breathlyzer test, which generally requires the production of alveolar or “deep lung” breath for chemical analysis, see, e.g., California vs. Trombetta, 467 U.S. 479, 481, 104 S.Ct. 2528, 2530, 81 L.Ed.2d 413 (1984), implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search, see 1 W. LaFave, Search and Seizure § 2.6(a), p. 463 (1987). See also Burnett vs. Anchorage, 806 F.2d. 1447, 1449 (CA9 1986); Shoemaker vs. Handel, 795 F.2d. 1136, 1141 (CA3), cert. denied, 479 U.S. 986, 107 S.Ct. 577, 93 L.Ed. 2d 580 (1986)”(italics added)

In layman’s terms that means that unless the subject in custody consents to the breath test, it can not be given unless the officer first obtains a search warrant from a magistrate or judge. But the law recognizes the difference between voluntary consent and mere acquiescence.

Consent to search must be “freely and voluntarily given,” Bumper vs. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), and “not be coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth, 412 U.S. at 228.

Importantly, Bumper also makes clear that mere acquiescence to the claim of authority by a law enforcement officer does not constitute consent. That can be the linchpin of a successful defense in BrAC cases where the officers ad lib the advice of rights required under the Michigan Implied Consent Law.

If you have been arrested for Michigan DUI and took a breath test there may be a basis to get the results of the test suppressed. In that case, it may be possible to get the charges dismissed or, at the very least, get a much more favorable disposition. If that is your situation call Michigan’s Top Rated DUI Attorney Edward Earl Duke at (248) 409-0484 to discuss the specifics of your case.

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