CALL ATTORNEY JIM AMBERG AT (248) 681-6255 FOR A FREE CONSULTATION

THE PRELIMINARY BREATH TEST

One of the most common methods of charging a young person with an MIP results directly from an officer forcing that young person to take an alcohol test through a portable breath test machine.  These machines are known as Breathalyzers, PBTs, and Alcohol Testers.  Most police officers have a machine handy and will make the minor in possession suspect blow into the machine, often times without consent or notice.

DO I HAVE TO TAKE THE PBT?

Unless you are the driver of a vehicle stopped by the police (here’s what you do in that situation), the answer is NO.  Do not take the breath test offered by the cops.  You have every right to refuse the PBT as Michigan considers preliminary breath tests intrusive and violates your Constitutional Rights.  Bottom line, DO NOT TAKE THE PBT!!!!!!!!

THE CHOWDHURY CASE

A good friend of mine, Rick Levitt, recently won an extremely important case in the Michigan Court of Appeals which stopped the illegal practice of rounding up kids at parties and forcing them to take PBT’s under the threat of jail.  In People v. Chowdhury, the Court dealt with a situation where police officers forced the Defendant to take a PBT under threat of jail.  They did not have a search warrant, nor did they have any other legitimate reason to impose an illegal search that would violate the Defendant’s Constitutional Rights.  Ultimately, the Court came down and heavily criticized the unfortunate routine practice of cops scaring kids into taking illegal PBTs.

WHAT IF I CONSENTED TO THE PBT?

This is the defense used by every cop and every prosecutor since the Chowdhury case.  Here is my characterization of the consent issue which comes directly from the many briefs I have filed on this issue:

“To validate an otherwise unreasonable search or seizure . . . consent must be unequivocal, specific, and freely and intelligently given.”  People v. Chowdhury, 2009 Mich. App. LEXIS 1842; __ Mich App __ (2009)(quoting People v Dagwan,269 Mich App 338, 342; 711 NW2d 386 (2005))  Further, “[c]onsent to search is not voluntary if it is the result of coercion or duress.”  Id (quoting People v Bolduc, 263 Mich App 430, 440; 688 NW2d 316 (2004))  “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.. . . This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”  People v Farrow, 461 Mich 202, 208; 600 NW2d 634 (1999) 

YOUR CONSENT MUST BE FREELY AND VOLUNTARILY GIVEN

The cops are trained to get you to willingly give up your rights without a search warrant.  They do everything from act tough to pretending that they are your friend in the hope you will allow them to violate your Constitutional Privacy Rights.  Even if you gave the officer your permission to take a breath test, it is only because you felt you had no other choice.  This is illegal, no matter how much the prosecutor and cop wish it wasn’t.  A good MIP criminal defense lawyer can make mincemeat out of a police officer who forced you to take the test.

PBT DEFENSES

In addition to the fact that the cops don’t have a right to give you a PBT, they usually manage to screw it up when they actually give it to you.  Whether it is the cops wiping the breath tubes, failing to observe you for a set period of time, or just plain not understanding the machine, the results of the PBT are highly suspect and usually incorrect.  On top of that, I have cross examined the lab operators at the Michigan Crime Lab and had them admit on the record that the much more accurate blood tests are never exactly correct.  If the score of the PBT is an issue to your case (as the State of Michigan requires that a reading of a 0.02 blood alcohol level be present for an MIP conviction), you need to hire a lawyer who understands how the breath test equipment works and has the ability to hammer the prosecutor’s experts on the tests unreliability.

CALL ATTORNEY JIM AMBERG, MICHIGAN’S MIP WARRIOR, AT (248) 681-6255 FOR A FREE CONSULTATION

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