3.32Issuance of Search Warrant in Operating While Intoxicated/Operating While Visibly Impaired Cases

“[P]ersons who operate vehicles on public highways are ‘considered to have given consent to chemical tests of his or her blood,’ rather than requiring the state to first obtain actual consent or a search warrant.” People v Campbell, 236 Mich App 490, 498 (1999), quoting MCL 257.625c(1). Specifically, Michigan’s implied consent statute, MCL 257.625c, provides:

“A person who operates a vehicle upon a public highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or other intoxicating substance, or any combination of them, in his or her blood or urine or the amount of alcohol in his or her breath [if the person is arrested for certain specified offenses].” MCL 257.625c(1).

The offenses specified in MCL 257.625c(1) are:

•Operating while intoxicated, MCL 257.625(1), or a substantially corresponding local ordinance;

•Operating while visibly impaired, MCL 257.625(3), or a substantially corresponding local ordinance;

•Operating while intoxicated/while visibly impaired/with any amount of controlled substance in body causing death, MCL 257.625(4);

•Operating while intoxicated/while visibly impaired/with any amount of controlled substance in body causing serious impairment of a body function, MCL 257.625(5);

•Operating with any bodily alcohol content, if the driver is less than 21 years of age, MCL 257.625(6), or a substantially corresponding local ordinance;

•Operating in violation of MCL 257.625(1), MCL 257.625(3)-(5), or MCL 257.625(8), if committed with a passenger under 16 years of age, MCL 257.625(7);

•Operating with any amount of a controlled substance, MCL 257.625(8), or a substantially corresponding local ordinance;

•Operating a commercial motor vehicle and refusing to submit to a preliminary chemical breath analysis,¹ MCL 257.625a(5), or a substantially corresponding local ordinance;

•Operating a commercial vehicle with a prohibited alcohol content, MCL 257.625m, or a substantially corresponding local ordinance;

•Committing a moving violation causing death, MCL 257.601d;

•Reckless driving causing serious impairment of a body function, MCL 257.626(3);

•Reckless driving causing death, MCL 257.626(4);

•Manslaughter resulting from the operation of a motor vehicle, MCL 257.625c(1)(b); or

•Murder resulting from the operation of a motor vehicle, MCL 257.625c(1)(b).

MCL 257.625a(6)(b)(iv) provides that a person arrested for any of the offenses specified in MCL 257.625c(1) must be advised, among other things, that “[i]f he or she refuses the request of a peace officer to take a [chemical test of his or her blood, urine, or breath], a test shall not be given without a court order, but the peace officer may seek to obtain a court order.” “[A] blood test conducted under the direction of police falls within the ambit of the Fourth Amendment.” People v Perlos, 436 Mich 305, 313 (1990). “When a blood sample is taken pursuant to a search warrant, the issue of consent is removed, and the implied consent statute is not applicable.” Manko v Root, 190 Mich App 702, 704 (1991).

Validity of Search Warrant. A search warrant to perform chemical testing should not be invalidated unless “material misstatements or omissions necessary to the finding of probable cause have been made.” People v Czuprynski, 325 Mich App 449, 471 (2018) (citation omitted). A search warrant remains valid even if it contains some incorrect information, or fails to include exculpatory information, if the incorrect or omitted information does not negate a finding of probable cause. Id. at 470.

“Reliance on a warrant is reasonable even if the warrant is later invalidated for lack of probable cause, except under three circumstances: (1) if the issuing magistrate or judge is misled by information in the affidavit that the affiant either knew was false or would have known was false except for his or her reckless disregard of the truth; (2) if the issuing judge or magistrate wholly abandons his or her judicial role; or (3) if an officer relies on a warrant based on a ‘bare bones’ affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Czuprynski, 325 Mich App at 472, citing United States v Leon, 468 US 897, 923 (1984); People v Goldston, 470 Mich 523, 531 (2004).

Constitutionality of Warrantless Breath and Blood Testing. “[T]he Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving[,]” and a state may criminally prosecute a driver for refusing a warrantless breath test;² “[t]he impact of breath tests on privacy is slight, and the need for [blood alcohol concentration (BAC)] testing is great.” Birchfield v North Dakota, 579 US ___, ___ (2016). However, “[b]ecause breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, . . . a blood test[] may [not] be administered as a search incident to a lawful arrest for drunk driving[,]” and “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id. at ___ (concluding that one of the three petitioners in the case “was threatened with an unlawful search” under a state law making it a crime to refuse a warrantless blood draw, and that “the search he refused [could not] be justified as a search incident to his arrest or on the basis of implied consent”) (emphasis added).

“[T]he natural metabolization of alcohol in the bloodstream [does not] present[] a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Missouri v McNeely, 569 US 141, 145 (2013). “[C]onsistent with general Fourth Amendment principles . . . exigency in this context must be determined case by case based on the totality of the circumstances.” Id. See also Birchfield, 579 US at ___ (citing McNeely, 569 US at 145, and noting that “[n]othing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not”). See MCL 257.625d(1).

In a plurality opinion³, the United States Supreme Court held that “in a narrow . . . category of cases . . . in which the driver is unconscious and therefore cannot be given a breath test, . . . the exigent circumstances rule almost always permits a blood test without a warrant.” Mitchell v Wisconsin, 588 US ___, ___ (2019). “[E]xigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious[.]” Id. at ___.

“[B]lood [that] has been lawfully collected for analysis may be analyzed without infringing additional privacy interests or raising separate Fourth Amendment concerns.” People v Woodard, 321 Mich App 377, 390-391 (2017). “[O]nce police procured a sample of [the] defendant’s blood pursuant to her consent, she had no reasonable expectation of privacy in the blood alcohol content of that sample and it could be examined for that purpose without her consent”; “the subsequent analysis of the blood did not constitute a separate search, and [the] defendant simply had no Fourth Amendment basis on which to object to the analysis of the blood for the purpose for which it was drawn.” Id. at 396. “[W]ithdrawal of consent after the search has been completed does not entitle a defendant to the return of evidence seized during the course of a consent search because those items are lawfully in the possession of the police; and, by the same token, a defendant who consents to the search in which evidence is seized cannot, by revoking consent, prevent the police from examining the lawfully obtained evidence.” Id. at 394-395.