Barone Scheduled to Teach Michigan Criminal Defense Lawyers About New Roadside Drug Testing Laws

The Criminal Defense Attorney Association of Michigan (CDAM) has asked Michigan DUI Lawyer Patrick Barone to present a 1-hour Webinar to criminal defense lawyers seeking to learn about recent changes to Michigan law impacting how intoxicated driving cases are investigated at the roadside.

The seminar, entitled Michigan Law Update: Roadside Drug Testing – What You Need to Know, will include a detailed analysis of Michigan’s roadside saliva drug testing program. In this workshop, Mr. Barone will teach other lawyers how to address these preliminary screening tests in court, and how to avoid defense traps that may befall the unwary.

In recent years, law enforcement at all levels of government, State and National, have begun focusing on the investigation and arrest of drivers intoxicated by drugs other than alcohol. Interest in drugged driving has increased with the advent of medical and recreational marijuana, and the saliva swab roadside testing program is designed to facilitate drugged driving arrests.

To help pave the way, Michigan legislators created three laws, each of which will be addressed in the workshop. The first of these three laws is found at Michigan Compiled Laws Sec. 257.62a. This short section simply defines the term “standardized field sobriety test.” This statute is noteworthy in that it seems to require that the standardized field sobriety tests used for either alcohol or drug investigations be administered in “substantial compliance” with the officer’s training to become a participant in the National Highway Safety Administration’s Standardized Field Sobriety Test program (SFST). It would also include the additional standardized field sobriety tests that are part of NHTSA’s Drug Recognition Expert (DRE) training. The DRE 12 step protocol includes two additional tests, the Finger to Nose and the Romberg tests.

Next, we have Michigan Compiled Laws Sec. 257.625s, which builds on Sec. 62a in that it codifies who is qualified to testify about the SFSTs. According to Sec. 625s, as a foundational requirement, prior to a court receiving testimony, a prosecutor must show that an officer has appropriate knowledge, skill, experience, training, or education, in the administration of standardized field sobriety tests.

The most relevant and detailed statute is Michigan Compiled Laws Sec. 257.625r as this is the Section addressing the administration of roadside preliminary oral fluid tests (POFT). This law, in subsection (1) indicates that to administer a roadside POFT the stop must have occurred in a County participating in a POFT pilot program an officer must:

Be a certified DRE, and;
Have “reasonable cause” that the POFT subject may have consumed controlled a substance(s) that affected his or her ability to operate a motor vehicle.

“Reasonable cause” means having enough information to lead an ordinarily careful person to believe that the defendant committed a crime. People v. Freeman, 240 Mich. App. 235, 236, 612 N.W.2d 824, 825 (2000). Section 625r(2) provides that an arrest can be based on the results of a POFT. This all tracks the language used relative to preliminary roadside breath tests (PBT).

Also tracking the language utilized for PBTs, the results for a POFT is admissible in court when the accused challenges the basis for the arrest, when a defendant wants to use the results to rebut his own witness who testified otherwise, or by a prosecutor seeking to rebut her own witness relative to the evidentiary chemical test. Also, like the PBT statute, a refusal to take a POFT is a civil infraction with no separate driver license sanctions.

On June 11, 2020 Governor Whitmer signed enrolled Senate Bill 718 amending MCL Sec. 257.625t, which was added in 2016. Sec. 625t essentially renews and appropriates funds for an additional year of the POFT pilot program started in 2016. Under Sec. 625t, the department of state police are required to develop a written policy for the implementation of the program and the administration of roadside drug testing. They are also encouraged to promulgate rules to implement the pilot program, and finally, the department of state police are required to prepare a report regarding the program for use by the State Government.

Those interested in attending this Webinar may register with CDAM by following this link.