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CRIMINAL LAW 13: A reasonable belief that a driver is operating his vehicle while intoxicated provides sufficient reasonable cause to conduct a search in the form of a PBT.

On the night of October 21, 2018,  a Grand Traverse County Deputy Sheriff initiated a traffic stop on the basis that defendant’s vehicle had an expired license place.  He confirmed this by means of a LEIN check and also discovered that defendant did not have automobile insurance for the vehicle.  Upon making contact with defendant, the Sheriff immediately noticed the odor of intoxicants coming from defendant’s breath and that defendant’s eyes were watery and bloodshot.  Defendant acknowledged that he had consumed one pale ale at the Detroit airport from which he was driving.  Thereafter, after his mediocre performance on a series of field sobriety tests, defendant was given a PBT (Preliminary Breath Test).  The results indicated a blood alcohol content (BAC) of .084 percent.  Defendant was taken into custody, and two additional breath alcohol tests were performed using a DataMaster instrument.  Both of those tests indicated a BAC of .09 percent. 

 Defendant moved, in relevant part, to suppress the DataMaster test results as the product of his unlawful arrest.  The district court held a hearing, during which the Sheriff testified regarding the details of the traffic stop, the particular field sobriety tests he performed, and the PBT.  After taking testimony from the arresting officer and an expert in sobriety field testing, the district court recognized that the question was close, but it granted the motion to suppress on the basis that the sobriety tests were not administered according to applicable or recognized standards, and the results were insufficient to warrant a conclusion that defendant was intoxicated. 

The prosecution appealed to the circuit court, which reversed, finding that under the totality of the circumstances, the sheriff had probable cause to lawfully place Defendant under arrest for committing misdemeanor operating while intoxicated and the District Court clearly erred by granting the Motion to Suppress.  The circuit court recounted defendant’s numerous failures to fully perform the various field sobriety tests, standard and nonstandard.  It concluded that even if none of those failures individually indicated intoxication, they nevertheless provided practical indicators that defendant was impaired in some manner and “provided sufficient cumulative evidence that Defendant was intoxicated” to establish probable cause to arrest defendant.  It also observed that violation of an administrative rule only warranted suppression of evidence if the violation called the reliability of the test into question.  It concluded that under the circumstances, it was not clear that the Sheriff actually did violate the 15-minute requirement before administering the PBT, and even if he did, a violation of at most 60 seconds did not undermine the PBT’s reliability enough to warrant suppression of the test results.  This appeal followed.


This Court reviews for clear error findings of fact regarding a motion to suppress evidence.  However, we review de novo the trial court’s ultimate decision on a motion to suppress.  Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake has been made.  Further, whether a search violated the Fourth Amendment, whether an exclusionary rule applies, and whether an officer’s suspicion is reasonable under the Fourth Amendment are questions of constitutional law that this Court reviews de novo. 


Defendant argues that the circuit court erred by reversing the district’s court order because the Sheriff’s testimony makes it clear that he did not observe defendant for the required 15-minute observation period before administering a PBT, and he failed to adhere to the proper testing protocol resulting in inaccuracy.  Further, defendant argues that even during his 14 minutes of interaction with defendant, the Sheriff turned his back to defendant on at least one occasion, and therefore, the Sheriff could not definitively say that defendant did not eat, drink, chew gum, or otherwise perform an act that would affect the test results.  We disagree.

We note three initial concerns.  First, defendant does not challenge the propriety of the Sheriff’s initial traffic stop of defendant’s vehicle based on his expired license plate.  Defendant also does not contend that the Sheriff lacked a reasonable and articulable suspicion justifying a brief detention in order to make reasonable inquiries aimed at confirming or dispelling suspicions arising from the smell of intoxicants inside the vehicle.  Secondly, we decline to consider the results of the DataMaster test as any kind of after-the-fact justification for defendant’s arrest.  This is partly because we recognize that defendant has raised an outstanding challenge to the DataMaster results themselves.   Primarily, however, the propriety of a search or seizure must stand or fail on the facts known to the effectuating officer at the time of the search or arrest, not on any facts learned afterwards.  Finally, we also decline to shift the burden of proof onto defendant to affirmatively prove that he did place something in his mouth or otherwise affirmatively caused the PBT test to be unreliable.  Accordingly, the questions before us are whether the Sheriff’s alleged failure to comply with the PBT standards invalidated the results and whether the Sheriff had sufficient evidence to support probable cause for defendant’s arrest at the time the arrest was made.

Aa deviation from the administrative rule regarding the administration of a PBT warrants suppression of the test results only where the deviation undermines the accuracy of the test.   It appears that there is no dispute that the Sheriff observed defendant for at least 14 minutes, other than while the Sheriff walked to the police vehicle.  The Sheriff believed that his “backup deputy” watched defendant during that brief interruption.  We find nothing in the rule to suggest that a “determination” that the testee had “not smoked, regurgitated, or placed anything in his or her mouth for at least 15 minutes” must be based exclusively on the operator’s own personal uninterrupted monitoring   Thus, the Sheriff’s delegation of observation duties to a trusted fellow officer is perfectly permissible and in no way undermines the “determination.”

We therefore need not consider whether the Sheriff would have had probable cause to effectuate defendant’s arrest even without the PBT results.  However, we nevertheless consider defendant’s challenge to the field sobriety tests and other observations of defendant because of their possible relevance to whether the Sheriff had an adequate basis for performing the PBT.

Defendant’s argument against the other sobriety tests the Sheriff administered is essentially that defendant did not perform badly enough on the tests for any individual test, standing alone, to establish that he was intoxicated.  Even presuming we were to accept that premise, defendant’s argument is fundamentally misguided.  Probable cause is based on the totality of the circumstances.  Defendant’s difficulties performing the tests provide evidence that he was impaired for some reason, and an administering officer should consider all of that evidence in combination.  Furthermore, the Sheriff agreed with the defense expert that defendant’s odor of alcohol was not proof of intoxication.  However, even the defense expert agreed that the odor of alcohol indicated that somebody had something to drink.


Given the totality of these circumstances, an officer could reasonably believe that defendant was operating his vehicle while intoxicated in violation of Michigan law.  Accordingly, we conclude that the information before the Sheriff provided sufficient reasonable cause to conduct a search in the form of the PBT, but also provided sufficient probable cause to support the Sheriff’s decision to place defendant under arrest, which led to the DataMaster test.  In sum, the circuit court did not err by concluding that defendant’s motion to suppress should be denied.


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