Michigan’s New Law and the Administration of Field Sobriety Tests

Nearly all drunk driving arrests in Michigan consist of four parts; (1) some sort of bad driving leading to a traffic stop, (2) roadside or “field sobriety tests,” (3) roadside breath test for alcohol, or saliva test for drugs, and; (4) second breath or blood test to confirm roadside test.

Regarding roadside field sobriety testing, Michigan law has been moving toward requiring that field sobriety tests be administered according to the standardized protocol. For example, prior Michigan cases have indicated that the Horizontal Gaze Nystagmus (HGN) must be administered properly and that the officer administering the test must be qualified to perform it. (Berger). Another Michigan drunk driving case indicates that an officer’s incorrect administration of the HGN test will lead to an inaccurate interpretation of the results. (Mullen). So far, however, no published Michigan drunk driving case has defined “standardized field sobriety test” or required either strict or substantial compliance.

A newly amended Michigan drunk driving law changes that, at least temporarily. This new law is part of the broader package of laws creating a pilot program pilot that aims to test the use of saliva testing to screen potential drugged drivers on the road side.[i]

As part of this package, MCL 257.62a now defines a “standardized field sobriety test.”[ii] The new law and definition also appears require “substantial compliance” to the National Highway Traffic Safety Administration (NHTSA) standards.

Based upon NHTSA, there are only three standardized tests: the horizontal gaze nystagmus (HGN) test, one-leg stand, and walk and turn. This new amendment to Michigan’s drunk driving laws clearly requires that the performance and evaluation of the horizontal gaze nystagmus (HGN) test, one-leg stand, and walk and turn must follow the rules promulgated by NHTSA.

Any DUI defense attorney who has ever cross-examined a police officer in a drunk driving trial knows that this would seem to bar many officers from testifying about the tests that they request! However, the new MCL 257.625s also appears to lessen the impact of that definition by allowing testimony if the officer is simply trained to do it correctly.[iii] It appears that the officer shall be allowed to testify to the standardized field sobriety test if they can show a proper foundation of qualifications.[iv]

It would seem that as long as the officer can discuss learning about the test and having performed it, that they could satisfy that requirement. If that wasn’t a low enough bar, the new law also allows for testimony about non-standardized testing, so long as it complies with the Michigan rules of evidence.[v] Of course, this essentially renders the definition and requirement for training as nugatory, as the officer can just testify about anything as long as it meets the rules of evidence. Thus, to put it in terms of an old adage, “what the law gives, the law takes away.”

Since this law only goes into effect on September 22, 2016 it is impossible to know how Michigan’s courts will interpret these new definitions and provisions. As always, however, good lawyering will be required to hold police officer’s to their training, and to thereby prevent wrongful convictions.

The author would like to thank DUI Attorney Ryan Ramsayer for his assistance in preparing this article.

[i] 2016 PA 242 and 243.

[ii] “Standardized field sobriety test” means 1 of the standardized tests validated by the National Highway Traffic Safety Administration. A field sobriety test is considered a standardized field sobriety test under this section if it is administered in substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration.

[iii] See MCL 257.625s: A person who is qualified by knowledge, skill, experience, training, or education, in the administration of standardized field sobriety tests, including the horizontal gaze nystagmus (HGN) test, shall be allowed to testify subject to showing of a proper foundation of qualifications. This section does not preclude the admissibility of a nonstandardized field sobriety test if it complies with the Michigan rules of evidence.

[iv] Id.

[v] Id.