The Michigan Court of Appeals has indicated, in the unpublished opinion of People v. Adam Robe, (COA# 355005); that a failure to wait 15 minutes before administering a roadside preliminary breath test (PBT) meant that the trial court could not consider the PBT in determining if the arrest is valid. This ruling may lead to the dismissal of the intoxicated driving causing serious injury charges pending against Mr. Robe.
The Robe case involved a two-vehicle accident. When the police arrived to assist, they immediately went to the vehicle where the driver had sustained serious injuries. Later then went to talk with Mr. Robe, and after about 3 minutes asked him to take a PBT. He consented, and thereafter was arrested and charged with drunk driving causing serious injury. Before trial, the defendant’s attorney filed a motion to dismiss, arguing that the PBT was not administered according to the administrative rules which require a 15-minute determination. No field tasks were administered, and the arrest was based almost solely on the failed PBT.
The trial court denied the motion, and rather than stand trial at that moment, the defense attorney asked for a “stay of proceedings” to pursue an “interlocutory appeal.” In other words, the defense attorney wanted an answer to this legal question about the PBT before putting Mr. Robe’s fate before a jury because if the attorney was right, and the arrest was unlawful, then there would be no trial. The drunk driving causing serious injury charge would have to be dismissed.
To fully understand the Robe case, it’s first helpful to know a little basic Michigan DUI law and how the defense of an intoxicated driving case works. The defense of every Michigan drunk driving case begins with an analysis of the arrest. For an arrest to pass Constitutional muster, the police officer making the arrest must have sufficient probable cause to believe that a crime has been committed.
In most drunk driving cases, the investigation begins when the officer witnesses some kind of traffic violation. Then, when approaching the car, the officer may notice things like an odor of “intoxicants,” slurred speech and so forth. Next, the officer will typically administer one or more field tasks, followed by a roadside preliminary breath test.
According to Michigan DUI law, a drunk driving arrest can be based on the results of a PBT alone. However, a PBT can only be administered if the police officer has reasonable cause to believe a driver is intoxicated. This specific topic was discussed in our prior article entitled Illegal Arrest Leads to Dismissal of Michigan Drunk Driving Case. Also, the police must follow the administrative rules applicable to the administration of a roadside breath test. In some cases, a failure to do so means the prosecutor can’t use the unlawful PBT results as evidence in bolstering the validity of the DUI arrest.
Returning to the Robe case, there was no dispute that the police officer failed to follow the administrative rules in that he failed to observe Mr. Robe for 15 minutes prior to the PBT and did not otherwise determine whether Robe had smoked, regurgitated, or placed anything in his mouth for at least 15 minutes prior to the PBT test.
In analyzing prior associated case law, and applying that law to the facts of this case, the Court of Appeals ruled that the PBT was not properly administered, and should therefore be suppressed. The Court of Appeals ruled this way for four reasons
- Rather than a 15 minute determination in this case there was only a 3 minute observation
- While the police were helping the other driver, no one was watching Robe, who was otherwise left unattended.
- No one asked any questions to Mr. Robe, to determine if for 15 minutes prior to the test he’d done anything that could foul the results, such as smoke or place something in his mouth.
- The deviation from the required 15 minute determination was substantial, and called the accuracy of the PBT into question.
Based on all of this the case was sent back to the Circuit Court with instructions for the trial court judge to determine if probable cause to arrest existed without the PBT. Based on this ruling it seems likely that this case will now either be dismissed or resolved through a great plea offer.