Michigan Court rules Police can’t force alcohol test without warrant

Jennifer Chambers / The Detroit News

Troy — Emran Chowdhury was leaving a house party on foot one night last year when he found himself face to face with a Troy police officer.

Investigating allegations of underage drinking, the officer asked Chowdhury some questions and then, according to court records, gave the 18-year-old an ultimatum: Take a preliminary breath test or face jail.

Chowdhury took the test out of fear, he told a judge, but never consented to it. He fought the matter in court and won.

As a result of a recent state Court of Appeals ruling in the case, police in Troy and other local jurisdictions across Michigan must now obtain a search warrant before they can require a minor to take a preliminary breath test (PBT).

A three-judge panel ruled unanimously that a Troy city ordinance allowing police to administer the PBT without a warrant is unconstitutional.

According to lawyers on both sides of the case, the decision sets a statewide legal precedent that is expected to force communities to rewrite similar “minor-in-possession” ordinances and at the same time require officers to take the extra step of obtaining a search warrant signed by a judge or magistrate.

Michigan’s minor-in-possession law, which applies to anyone under age 21, was toughened by Gov. Jennifer Granholm in 2004 to include blood-alcohol content under the definition of being “in possession of alcohol.”

The tougher zero-tolerance law — which since has been successfully challenged in state and federal court — considers any alcohol ingestion by minors illegal, regardless of whether they’re driving.

The appeals court ruling will affect every city in the state that has a minor-in-possession ordinance because most use language identical to Troy’s law, said Rick Levitt, Chowdhury’s attorney.

“(The appeals court) left no doubt that the manner in which the police had been forcing kids to take a PBT is unconstitutional,” he said. “I can’t see the city prevailing on appeal. That is what the constitution requires unless there are some limited exceptions. They have to get a warrant.”

The ruling, issued Sept. 10, upheld decisions by a district judge and circuit judge that Troy’s ordinance is unconstitutional on its face and the warrantless search had been unreasonable.

“It will take a lot of manpower we did not anticipate,” Troy City Attorney Lori Bluhm said, referring to seeking PBT warrants. “We will be able to continue making sure the law is being upheld. It still is a major inconvenience.”

Some cities ‘aggressive’

Chowdhury testified in court that officers said he was required to take the PBT. He and other witnesses said the officers informed them they would be taken to the police station and possibly go to jail if they did not comply.

Now a student at Michigan State University, Chowdhury told the court he believed he had no choice but to submit to the test, which registered a .025 alcohol level. Chowdhury declined to comment for this story.

Levitt filed a motion to suppress the test results, arguing to Troy District Judge William Bolle the ordinance was unconstitutional because it allowed the police to perform warrantless searches.

“The officer was threatening these kids in the foulest of terms. It’s an extremely intimidating situation,” Levitt said. “I think the intimidation and fear factor are inherent in this situation, you can’t remove it when you have uniformed, armed officers.”

Levitt said the appeals court ruling and a recent lawsuit against district court judges in Rochester and Bloomfield alleging that juveniles in minor-in-possession cases are being illegally jailed are proof that law enforcement officials are overzealous in their effort to eliminate underage drinking.

“Some jurisdictions — Troy being one of them — are far more aggressive. It’s an extremely oppressive situation,” Levitt said. In Oakland County, there were 1,622 minor-in-possession cases in 2008, according to the Office of Highway Safety Planning.

Sgt. Perry Curtis of the Michigan State Police alcohol enforcement unit said his department has been seeking search warrants for minors for PBTs since a 2007 ruling out of U.S. District Court in Detroit that declares a portion of the state’s minor-in-possession statute unconstitutional.

Police cite inconvenience

Bluhm said she is not recommending the city appeal the warrant requirement to the Michigan Supreme Court, but the Troy City Council will make the final decision. Immediately after the ruling, Troy police officers were required to get consent from the minors or seek warrants for breath tests, Bluhm said.

“It’s not just inconvenient to the police, it’s inconvenient to the individual. If we have to get a search warrant, we have to detain them onsite unless consent is given,” she said.

The burden on police to obtain search warrants is not unreasonable, Levitt said. The appeals court agreed, saying the city never presented evidence as to why officers could not have sought a warrant.

“It doesn’t take too long to get a search warrant. Police do this all the time in drunk driving cases. They are ready to go. Judges and magistrates are available 24 hours a day, 7 days a week,” Levitt said.

Oakland University student Enio Sina found himself at a party in Troy where police were asking underage kids to take PBTs. The 18-year-old consented, he said, because he wasn’t drinking and wanted to go home. He thinks police should be able to require PBTs without a warrant because of the dangers of drinking and driving. OU student David Kulig, 20, agreed.

“It’s usually pretty obvious when someone has been drinking. I think the (state’s) no-tolerance law” — which considers any alcohol ingestion by a minor illegal — “is harsh,” Kulig said, but he does believe drinking and driving is dangerous.

Carol Mastroianni, executive director, of the Birmingham Bloomfield Community Coalition, said the ruling won’t hurt efforts to eliminate underage drinking.

“Our law enforcement will do what they did in the past. They are going to request young people to take the test, and you can still charge by observations: looking at their eyes, their breath, their speech, their mannerisms. All that happened is a tool was taken away.”

Homer Smith, state director of Michigan Mothers Against Drunk Driving, said police and lawyers have been debating minor-in-possession laws in Michigan for some time. Yet the focus, Smith says, should be about how minors are getting access to alcohol.

“If we really want to impact underage drinking, we need to get to the source and in almost every instance an underage person got alcohol because someone wasn’t doing their job,” Smith said. “We need to focus on that.”

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