As drunk drivers become less common on our roads, resulting in a loss of revenue to the government, the government has decided to focus on a new public enemy: drugged driving. Americans are becoming a society of medicated persons and many of those medications may affect driving. Soon, the anti-drunk driving commercials will be replaced with anti-drugged driving commercials, with all new catchphrases. “Drive Sober or Get Pulled Over” or “Over the Limit, Under Arrest” may soon be talking about your “Prescription for Arrest.” While no one is advocating drugged driving, knee-jerk reactions and propaganda campaigns are not always the solution. Many times, the public outcry will tip the scales of justice towards the prosecution. Unfortunately, a mob mentality can also lead to the passage of laws that are ill-considered and ill-advised. The new attempt to ensnare drugged drivers may already be so overzealous, as to have an unintended victory for the defense.
Michigan Public Act 315, of the 2014 Legislative Session, which amends MCL § 257.625a, is intended to help officers in the field make more drugged driving arrests. Whether it will help – or perhaps even hurt – these efforts remain to be shown. This Act, combining House Enrolled Bill 5385 and Enrolled Senate Bill 863, was presented to the Governor on October 7, 2014. Signed on October 14, 2014, the Act will become effective on January 12, 2015. Essentially, the new Act requires suspects to perform a “preliminary roadside analysis.” Currently, any participation in field sobriety is voluntary; however, come January it will be against the law to refuse to stand on one leg or walk a straight line.
Perhaps the biggest, and likely unintended, change in the law will be the conduct of trials in OWI cases. Specifically, the new Act changes the language from “preliminary breath test” to “preliminary roadside analysis” in MCL 257.625a(2)(b). That amended section states:
(b) The results of a preliminary roadside analysis are admissible in a criminal prosecution for a crime enumerated in section 625c(1) or in an administrative hearing for 1 or more of the following purposes:
(i) To assist the court or hearing officer in determining a challenge to the validity of an arrest. This subparagraph does not limit the introduction of other competent evidence offered to establish the validity of an arrest.
(i) As evidence of the defendant’s breath alcohol content, if offered by the defendant to rebut testimony elicited on cross-examination of a defense witness that the defendant’s breath alcohol content was higher at the time of the charged offense than when a chemical test was administered under subsection (6).
(iii) As evidence of the defendant’s breath alcohol content, if offered by the prosecution to rebut testimony elicited on cross-examination of a prosecution witness that the defendant’s breath alcohol content was lower at the time of the charged offense than when a chemical test was administered under subsection (6)[i]
Prior to the new Act, this section only applied to the admissibility of a preliminary breath test at trial. Under Michigan case law, it has been well settled that preliminary breath tests are not admissible, barring one of the enumerated exceptions.[ii] Currently, any defense attorney worth his weight, is clearly wise enough to avoid any of the exceptions, preventing the admission of the preliminary breath test result at trial.
As stated, under the new law, a preliminary roadside analysis is specifically defined to include the “observation of a field sobriety test.” The change in the law to include the observations of field sobriety tests, a yet undefined term, has significant impact on the introduction of evidence at trial. As everyone knows, trials are all about which evidence comes in and which evidence doesn’t. This is the delicate game played by each side in an effort to make their case stronger or the opponent’s case weaker. Further, there are always competing interests between the public need to punish crime and the defendant’s rights to not be falsely convicted. Because the law is ambiguous in regard to what constitutes a field sobriety test, it should be assumed on the defendant’s behalf that any test given, which may indicate the suspect’s level of impairment, will be included. This leaves only the most base level observations as admissible evidence.
Barring a major error by the defense attorney, cases before a jury will now be limited to the officer’s observations of driving, the observation of a suspect’s condition, and then an acknowledgement of arrest. This will make it much more difficult for a jury to determine a defendant’s level of intoxication/impairment based upon the Jury Instructions.[iii] Without the field sobriety testing in evidence, a breath/blood alcohol result will have less weight. It is clear that many jurors find a correlation between performance during field sobriety testing and a breath/blood alcohol result.
The new act will especially impact drugged driving cases, where medications affect people in completely different ways. Without any test to show impairment, the prosecutor may find themselves with a speeding ticket, a blood test within the medication’s prescribed dosage, and a jury saying “not guilty.”
[i] Michigan Public Act 315 (amending MCL 257.625a(2)(b)).
[ii] See People v. Keskinen, 177 Mich.App. 312, 318-319, 441 N.W.2d 79, 82 (Mich.App.,1989) (Holding: “that the trial court in this case erred in admitting into evidence the result of defendant’s preliminary breath test.”)
[iii] See Michigan Model Jury Instruction 15.5:
“(1) What was the mental and physical condition of the defendant at the time that [he/ she] was operating the motor vehicle? Were the defendant’s reflexes, ability to see, way of walking and talking, manner of driving, and judgment normal? If there was evidence that any of these things seemed abnormal, was this caused by drinking alcohol?”