Covid 19 Makes Resisting and Obstructing in Michigan DUI Cases More Likely

With the advent of the novel covid 19 virus many officers who arrest suspected Michigan DUI drivers are now worried about the contamination risks associated with a breath test. Obtaining a breath sample places an officer directly at risk for exposure because the officer must do all of the following:

Be very near to a DUI suspect as they exhale into the breathalyzer.
Look directly into and inspect a DUI suspect’s mouth prior to the blow.
Handle the breath test tube into which the exhaling DUI suspect is blowing.
Handle and exchange breath tubes between two samples obtained.

With each of these necessary steps even an officer who takes precautions is at increasing risk for transmission of the dangerous virus. Add to this fact that the DUI suspect may be a carrier showing now symptoms whatsoever, and many officers are opting out of the breath test option altogether. As an alternative, the Michigan DUI laws allow the officer to alternatively seek a DUI suspect’s blood or urine.

Today, the safest option for an officer is blood, and this fact will increase the number of DUI suspects who are taken to the hospital for a blood test. In order to obtain blood from a DUI suspect in Michigan, an officer must either have the consent of the driver or obtain a warrant.What few DUI suspects understand is that it takes very little resistance to this blood draw to end up with a new charge, in addition to the DUI, of resisting and obstructing. In Michigan, resisting and obstructing is a felony, as defined in Michigan Complied Laws 250.81d.

To understand just how easy it is to up charged with this felony in Michigan, take for example the case of People v. Philabaun, 461 Mich. 255, 264, 602 N.W.2d 371, 376 (1999). Here, the only thing the DUI suspect did when the blood was requested was calmly utter the word “no.” The DUI suspect uttered the word no in a civil tone. He was not angry; he didn’t curse and was in no way abusive to the officer. Nevertheless, the Michigan Supreme Court found that this one-word utterances, standing alone, was enough to sustain a resisting and obstructing charge.

Similarly, consider the unpublished case of Commonwealth v. Palchanes, 2019 WL 6336044 (Pa. Super.). Although the write up of this case contains little in the way of facts, what is clear is that the defendant was pulled over for DUI in Pennsylvania. After arresting him, the officer took the DUI suspect to the hospital for a blood draw, and he refused to consent to a blood draw. With no consent, the officer had no other choice but to obtain a warrant. Thereafter, the DUI suspect continued to refuse in an unspecified way.

In Pennsylvania, the crime of resisting and obstructing consists of two things:

The DUI suspect must have the intent to obstruct the administration of law; and
The DUI suspect must perform some act of affirmative interference with the blood draw.

On appeal, the DUI suspect’s lawyer argued that he did not intentionally obstruct justice and that it was improper to charge him with resisting and obstructing because he was not told, when he refused, that a resisting and obstructing charge might result from his actions. The court found these arguments to be totally without merit and sustained the conviction.

In both DUI cases the officers had obtained search warrants and it seems reasonable that without one neither DUI suspect would have been able to be charged with this added felony.