Will Covid-19 Face Masks Lead to More DUI Arrests in Michigan?

With new cases of Covid-19 continuing to escalate in Michigan, on July 10, 2020, Governor Whitmer responded with Executive Order 2020-147, which indicates that “[A]ny individual who leaves their home or place of residence must wear a face covering over their nose and mouth.” The Order further provides that masks must be worn in any indoor public space and on all public transportation. Also, face masks are now mandatory when you are a passenger on any ride-sharing vehicle, such as Lyft or Uber, or in any private car when being used as “hired transportation.” Will this mandatory Covid-19 face mask requirement have any impact on law enforcement practices? Specifically, will a lack of a face mask by driver or a vehicle’s occupants lead to probable cause to stop a motor vehicle?

To answer this interesting legal question, we begin by noting that the Executive Order does make a failure to comply a crime.  Specifically, the order provides that a failure to wear a required face mask is a misdemeanor, though no jail time may be imposed for its willful violation. An open question in all this is how and even whether the police in the State of Michigan will enforce this Order?

As it relates to the existing law governing when the police may stop a moving vehicle, the general rule is that they must have “probable cause.”  However, there are many circumstances when the police may lawfully stop you, including and perhaps most commonly, for a violation the traffic code such as speeding. In 2014, the United States Supreme Court, in the Navarette case indicated that a vehicle may be stopped based on an anonymous 911 call provided the caller provides enough information and detail to have the indica of reliability and therefore enough to give rise to a reasonable suspicion that criminal activity was afoot.

Police officers may also stop a moving vehicle if they reasonably suspect, based on specific and articulable facts, that someone inside the moving vehicle committed a specific crime or was about to commit a specific crime.  This reasonable suspicion can be based on an informant.  See, e.g., State v. Gattenby, 301 Or.App. 229, — P.3d —- (2019). There are many other reasons a traffic stop may be legally permissible, but based on this information alone it would appear that the police could theoretically stop a moving vehicle after observing a lack of Covid-19 face masks.

However, this analysis presupposes that the Governor’s Executive Order requiring a person to wear a mask any time they leave their home includes while inside one’s personal vehicle. Clearly a person’s car is not “public transportation” and it is also not public indoor space, and unless the vehicle is being used as transportation for hire, a good argument can be made that the Order does not cover one’s private car when used as private transportation.  Nevertheless, due only to the broadness of the Order it is conceivable that a police officer could view the order differently and could stop your car based on this fact alone. How a judge may view the legality of such a stop is an open question since as of the date of this article the author knows of no case where a traffic stop has been based solely on this fact.

In a related scenario, a DUI stop did arise out of a failure to wear a Covid-19 face mask in the State of Arizona.  As reported in the Sonoma Index-Tribune on July 20, 2020, an individual by the name of Sproule was driving aggressively which caused another citizen to call the police.  The police caught up with Sproule at a gas station and found the un-masked Sproule about to gas-up his car.  He appeared intoxicated and was arrested for DUI.

Another interesting side-note is this; if you are stopped by the police for DUI and are wearing a mask, may the police ask you to remove same so as to listen to your speech and determine if there is an odor of alcohol on your breath?  It would seem that the answer is “yes” though doing so may endanger both the officer as well as the driver by exposing each to an increased risk of contracting the Covid-19 virus.

If you are stopped for DUI in Michigan, with or without a Covid-19 face mask, call the Michigan DUI lawyers at the Barone Defense Firm for your FREE no obligation case review. One of the many things we will do when speaking with you is determine if there may be a defense to your DUI based on an unlawful police stop.