Even before you are arrested, the police in Michigan can often conduct a search of your breath using a portable or preliminary breath test device. The purpose of these tests is to determine how much alcohol is in your body. However, these portable breath testers have significant limitations relative to the reliability of the results reported. This is because of the way these portable breath testers measure alcohol. Because these limitations are well recognized in the scientific community, the law usually precludes them from being entered into evidence.
For example, in drunk driving cases, results from breath tests taken at the roadside are generally inadmissible. There are exceptions making preliminary breath test results admissible into evidence, and these are set for in Michigan Compiled Laws sec. 257.625a(2)(b).
However, these exceptions may not apply to other types of criminal activity in Michigan. For example, preliminary breath tests would be admissible on the charge of Possession of a Firearm Under the Influence, a crime set forth in Michigan Compiled Laws sec. 750.237.
This issue was recently addressed in Michigan in the case of People v. Booker. In this case, the defendant was sitting in a car strewn with alcohol containers. When the police arrived, the defendant told the police he was carrying a concealed weapon. Subsequently, the police administered a preliminary breath test, and the result was a .15, well over the legal limit for intoxication of .08.
The attorney for the defendant argued that the preliminary breath test should not be admitted into evidence because the weapon’s charge refers to the drunk driving statute, and the drunk driving statute says it’s not admissible. This is an important argument because intoxication is an element of the crime. In other words, if the prosecutor can’t prove you were intoxicated, then they cannot prove you committed the crime of possession of a firearm while intoxicated.
The defendant won this argument at both the district court as well as the circuit court. However, when the case got to the court of appeals, they reversed and said the preliminary breath test was admissible. The court of appeals reasoned that because the law at issue, that being the possession of a firearm under the influence, refers only to the collection and testing, the admissibility provisions of the drunk driving statute don’t apply.
Specifically, the court indicated:
While the circuit court was correct that this Court deemed PBTs to be “comparatively unreliable” to breath, blood, and urine tests, the Court was clear that despite any potential unreliability, PBTs are admissible in cases involving offenses other than drunk driving.
It is unfortunate that the court of appeals has now ruled that admittedly unreliable evidence is admissible to prove the element of a crime.