9.13​Preliminary Chemical Breath Analysis (PBT) & Chemical Tests of Blood, Urine, or Breath

A.​Preliminary Chemical Breath Analysis (PBT)

1.​Submitting to or Refusing a Preliminary Chemical Breath Analysis Test (PBT)

“A peace officer who has reasonable cause to believe that a person was operating a vehicle on a public highway or other place open to the public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within [Michigan] and that the person by the consumption of alcoholic liquor may have affected his or her ability to operate a vehicle . . . or reasonable cause to believe that a person who is less than 21 years of age was operating a vehicle on a public highway or other place open to the public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within [Michigan] while the person had any bodily alcohol content as that term is defined in [MCL 257.625(6)], may require the person to submit to a preliminary chemical breath analysis test[ (PBT)].” MCL 257.625a(2).

“A person who submits to a [PBT] remains subject to the requirements of [MCL 257.625c, MCL 257.625d, MCL 257.625e, and MCL 257.625f] for purposes of chemical tests described in those sections.” MCL 257.625a(2)(c).

“Except as provided in [MCL 257.625a(5)²⁸], a person who refuses to submit to a [PBT] upon a lawful request by a peace officer is responsible for a civil infraction.” MCL 257.625a(2)(d).

2.​Compliance with Administrative Rules

Mich Admin Code R 325.2655(2)²⁹ provides:

“A procedure that is used in conjunction with preliminary breath alcohol analysis must be approved by [LARA] and shall be in compliance with all of the following provisions:

(a) Except as provided otherwise in these rules, preliminary breath alcohol test instruments shall only be operated by appropriate class operators who have been certified in accordance with [Mich Admin Code R 325.2658.³⁰]

(b) A person may be administered a preliminary breath alcohol analysis on a preliminary breath alcohol test instrument only after the operator determines that the person has not smoked, regurgitated, or placed anything in his or her mouth for at least 15 minutes.

(c) Records shall be maintained at the preliminary breath alcohol test instrument location as prescribed by the department and copies shall be forwarded to the department as required.”

Whether a “defendant’s PBT results can be considered when determining whether there was probable cause to arrest” when it was not administered in compliance with Mich Admin Code R 325.2655³¹ depends on whether “the violation of the administrative rule was significant and calls into question the accuracy of the PBT.” People v Robe, 337 Mich App 142, 145, 148 (2021).

“Because the administrative rule governing Breathalyzer tests is similar to the one controlling the administration of PBTs,” the Robe Court viewed People v Boughner, 209 Mich App 397 (1995), and People v Wujkowski, 230 Mich App 181 (1998), as instructive. Robe, 337 Mich App at 146. In Boughner, “failure to comply with the 15-minutes observation rule sufficiently undermined the accuracy of the defendant’s Breathalyzer test results to warrant the reversal of his plea-based conviction . . . [because] even though there was video of approximately 35 minutes before the Breathalyzer was administered, the operator of the Breathalyzer observed the defendant for no more than eight minutes. Moreover, the operator did not continuously observe the defendant for those eight minutes, and the defendant’s hand was either on his face or in his mouth during the time in which he was videotaped.” Robe, 337 Mich App at 146-147 (citation omitted). Contrast with Wujkowski, where “violation of the 15-minute observation rule did not warrant suppression of the Breathalyzer test results because there was only a de minimis, technical violation of the regulation,” the operator observed the defendant for more than 15 minutes, and “[t]he alleged variance from the rule was a six-second period during which the operator walked away from the defendant to check the machine, and during that time there was another officer present while the operator left to check the machine.” Robe, 337 Mich App at 147. In Robe, “the officer who administered the [PBT] only observed defendant for three minutes, and there [was] no evidence that anyone else observed defendant for the additional 12 minutes before the test was administered.” Id. at 148. The Robe Court concluded that the facts of the case were more similar to Boughner and required suppression of the PBT result because “the violation of the administrative rule was significant and call[ed] into question the accuracy of the PBT.” Robe, 337 Mich App at 148 (the Court did not consider whether there was probable cause to arrest absent the PBT result because the trial court did not address the issue, but indicated defendant could raise the issue on remand).

3.​Arrest Authorized

“A peace officer may arrest a person based in whole or in part on the results of a [PBT].” MCL 257.625a(2)(a).

4.​Admissibility at Trial

“The results of a [PBT] are admissible in a criminal prosecution for a crime enumerated in [MCL 257.625c(1)] or in an administrative hearing for 1 or more of the following purposes:

(i) To assist the court or hearing officer in determining a challenge to the validity of an arrest. This subparagraph does not limit the introduction of other competent evidence offered to establish the validity of an arrest.

(ii) As evidence of the defendant’s breath alcohol content, if offered by the defendant to rebut testimony elicited on cross-examination of a defense witness that the defendant’s breath alcohol content was higher at the time of the charged offense than when a chemical test was administered under [MCL 257.625a(6)].

(iii) As evidence of the defendant’s breath alcohol content, if offered by the prosecution to rebut testimony elicited on cross-examination of a prosecution witness that the defendant’s breath alcohol content was lower at the time of the charged offense than when a chemical test was administered under [MCL 257.625(6)].” MCL 257.625a(2)(b).

MCL 257.625a(2)(b) “does not reflect an arbitrary exercise of a governmental authority” that “imposes an unconstitutional impediment on [a] defendant’s right to present a complete defense” because “our Legislature has a legitimate interest in limiting collateral litigation and jury confusion concerning the result of comparatively unreliable breath tests” and “ensuring that reliable evidence is presented to the trier of fact in a criminal trial.” People v Parrott, 335 Mich App 648, 658, 661, 663 (2021) (quotation marks and citation omitted). “MCL 257.625a(2)(b) reflects the exercise of legislative authority that is consistent with” those interests. Parrott, 335 Mich App at 661. “In MCL 257.625a, the Legislature equalized how both defendants and the prosecution can use PBT results. The plain language of the statute treats defendants and the prosecutors the same: neither may use PBT results unless the result rebuts certain testimony regarding the defendant’s BAC at the time of the offense. The statute provides neither party an advantage. And even if [the Court] were to accept defendant’s premise that prosecutors tend to have greater success when moving for the admission of PBT results, any imbalance is due to a defendant’s cross-examination that opens the door to an unfavorable PBT result.” Parrott, 335 Mich App at 664-665 (citation omitted; noting “a defendant’s ill-advised cross-examination of a government witness [does not] render[] a neutral statute unconstitutionally disproportionate”). A defendant “is not deprived of the meaningful opportunity to present a complete defense” because the defendant “may still present expert testimony that his BAC was lower at the time he was driving because his BAC was increasing” as time continued; defendant “simply may not use his PBT result to do so.” Id. at 666.

B.​Chemical Test

1.​Implied Consent Upon Arrest

“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 [Michigan] 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 in all of the following circumstances:

(a) If the person is arrested for a violation of [MCL 257.625(1), MCL 257.625(3), MCL 257.625(4), MCL 257.625(5), MCL 257.625(6), MCL 257.625(7), or MCL 257.625(8)], [MCL 257.625a(5)], or [MCL 257.625m] or a local ordinance substantially corresponding to [MCL 257.625(1), MCL 257.625(3), MCL 257.625(6), or MCL 257.625(8)], [MCL 257.625a(5)], or [MCL 257.625m].

(b) If the person is arrested for a violation of [MCL 257.601d], [MCL 257.626(3) or MCL 257.626(4)], or manslaughter, or murder resulting from the operation of a motor vehicle, and the peace officer had reasonable grounds to believe the person was operating the vehicle in violation of [MCL 257.625].” MCL 257.625c(1).

“A person who is afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant under the direction of a physician is not considered to have given consent to the withdrawal of blood.” MCL 257.625c(2).

“The tests shall be administered as provided in [MCL 257.625a(6)].” MCL 257.625c(3).

2.​Advice

“A person arrested for a crime described in [MCL 257.625c(1)] shall be advised of all of the following:

(i) If he or she takes a chemical test of his or her blood, urine, or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer 1 of the chemical tests.^[32]

(ii) The results of the test are admissible in a judicial proceeding as provided under [the MVC] and will be considered with other admissible evidence in determining the defendant’s innocence or guilt.

(iii) He or she is responsible for obtaining a chemical analysis of a test sample obtained at his or her own request.

(iv) If he or she refuses the request of a peace officer to take a test described in subparagraph (i), a test shall not be given without a court order, but the peace officer may seek to obtain a court order.

(v) Refusing a peace officer’s request to take a test described in subparagraph (i) will result in the suspension of his or her operator’s . . . license and vehicle group designation or operating privilege and in the addition of 6 points to his or her driver record.” MCL 257.625a(6)(b).

3.​Submitting to or Refusing a Chemical Test

“A chemical test described in [MCL 257.625a(6)] shall be administered at the request of a peace officer having reasonable grounds to believe the person has committed a crime described in [MCL 257.625c(1)].” MCL 257.625a(6)(d).

“A person who takes a chemical test administered at a peace officer’s request as provided in [MCL 257.625a] shall be given a reasonable opportunity to have a person of his or her own choosing administer 1 of the chemical tests described in [MCL 257.625a(6)(d)] within a reasonable time after his or her detention.” MCL 257.625a(6)(d).³³ “The test results are admissible and shall be considered with other admissible evidence in determining the defendant’s innocence or guilt.” Id.

“If the person charged is administered a chemical test by a person of his or her own choosing, the person charged is responsible for obtaining a chemical analysis of the test sample.” MCL 257.625a(6)(d).

“If a person refuses the request of a peace officer to submit to a chemical test offered under [MCL 257.625a(6)], a test shall not be given without a court order, but the officer may seek to obtain the court order.” MCL 257.625d(1).³⁴

“A written report shall immediately be forwarded to the secretary of state by the peace officer.” MCL 257.625d(2). “The report shall state that the officer had reasonable grounds to believe that the person had committed a crime described in [MCL 257.625c(1)], and that the person had refused to submit to the test upon the request of the peace officer and had been advised of the consequences of the refusal.” MCL 257.625d(2).

a.​Requesting a Hearing

“If a person refuses to submit to a chemical test pursuant to [MCL 257.625d], the peace officer shall immediately notify the person in writing that within 14 days of the date of the notice the person may request a hearing as provided in [MCL 257.625f].” MCL 257.625e(1).

“The notice shall specifically state that failure to request a hearing within 14 days will result in the suspension of the person’s license or permit to drive.” MCL 257.625e(2). “The notice shall also state that there is not a requirement that the person retain counsel for the hearing, although counsel would be permitted to represent the person at the hearing.” Id.

“If a person who refuses to submit to a chemical test pursuant to [MCL 257.625d] does not request a hearing within 14 days after the date of notice pursuant to [MCL 257.625e], the secretary of state shall impose the following license sanctions:

(a) If the person was operating a vehicle other than a commercial motor vehicle, suspend or deny the person’s operator’s . . . license or permit to drive, or nonresident operating privilege, for 1 year or, for a second or subsequent refusal within 7 years, for 2 years. If the person is a resident without a license or permit to operate a vehicle in [Michigan], the secretary of state shall not issue the person a license or permit for 1 year or, for a second or subsequent refusal within 7 years, for 2 years.” MCL 257.625f(1).

If the person requests a hearing, MCL 257.322 governs the procedures for that administrative hearing. MCL 257.625f(2). “If the person who requested a hearing does not prevail, the secretary of state shall impose the following license sanctions after the hearing:

(a) If the person was operating a vehicle other than a commercial motor vehicle, suspend or deny issuance of a license or driving permit or a nonresident operating privilege of the person for 1 year or, for a second or subsequent refusal within 7 years, for 2 years. If the person is a resident without a license or permit to operate a vehicle in [Michigan], the secretary of state shall not issue the person a license or permit for 1 year or, for a second or subsequent refusal within 7 years, for 2 years.” MCL 257.625f(7).

b.​Circuit Court Appeal

“The person may file a petition in the circuit court of the county in which the arrest was made to review the suspension or denial as provided in [MCL 257.323].” MCL 257.625f(7)(a). “If the person who requested the hearing prevails, the peace officer who filed the report under [MCL 257.625d] may, with the consent of the prosecuting attorney, file a petition in the circuit court of the county in which the arrest was made to review the determination of the hearing officer as provided in [MCL 257.323].” MCL 257.625f(8).

4.​Requirements for Collecting Sample/Specimen for Chemical Test

“A sample or specimen of urine or breath must be taken and collected in a reasonable manner. Only a licensed physician, or an individual operating under the delegation of a licensed physician under [MCL 333.16215], qualified to withdraw blood and acting in a medical environment, may withdraw blood at a peace officer’s request to determine the amount of alcohol or presence of a controlled substance or other intoxicating substance in the person’s blood, as provided in [MCL 257.625a(6)(c)]. Liability for a crime or civil damages predicated on the act of withdrawing or analyzing blood and related procedures does not attach to a licensed physician or individual operating under the delegation of a licensed physician who withdraws or analyzes blood or assists in the withdrawal or analysis in accordance with [the MVC] unless the withdrawal or analysis is performed in a negligent manner.” MCL 257.625a(6)(c).

5.​Disclosure

“If a chemical test described in [MCL 257.625a(6)] is administered, the test results must be made available to the person charged or the person’s attorney on the written request to the prosecution, with a copy of the request filed with the court. The prosecution shall furnish the results at least 2 days before the day of the trial. The prosecution shall offer the test results as evidence in that trial. Failure to fully comply with the request bars the admission of the results into evidence by the prosecution.” MCL 257.625a(8).

Similarly, after an accident, chemical tests may be taken and must be disclosed as required by statute. See MCL 257.625a(6)(e)-(f).

Under MCL 257.625a(6)(e), if a chemical analysis of a driver’s blood has been taken pursuant to that provision (taking blood after accident for medical purposes), “[t]he medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecuting attorney who requests the results for use in a criminal prosecution as provided in [MCL 257.625a(6)(e)]. A medical facility or person disclosing information in compliance with [MCL 257.625a(6)(e)] is not civilly or criminally liable for making the disclosure.” MCL 257.625a(6)(e). “[MCL 257.625a(6)(e)³⁵] is constitutional under US Const, Am IV and Const 1963, art 1, § 11, and the Equal Protection Clauses of US Const, Am XIV and Const 1963, art 1, § 2.” People v Perlos, 436 Mich 305, 309 (1990). Although the Perlos holding construed a former version of this statute, the subsequent statutory amendments do not appear to disturb this holding.

Under MCL 257.625a(6)(f), a person’s blood “must be withdrawn in a manner directed by the medical examiner” following an accident where the driver dies. “The medical examiner shall give the results of the chemical analysis of the sample to the law enforcement agency investigating the accident and that agency shall forward the results to the department of state police.” Id.

6.​Admissibility Issues

“The amount of alcohol or presence of a controlled substance or other intoxicating substance in a driver’s blood or urine or the amount of alcohol in a person’s breath at the time alleged as shown by chemical analysis of the person’s blood, urine, or breath is admissible into evidence in any civil or criminal proceeding and is presumed to be the same as at the time the person operated the vehicle.” MCL 257.625a(6)(a).

“The results of the test are admissible in a judicial proceeding as provided under [the MVC] and will be considered with other admissible evidence in determining the defendant’s innocence or guilt.” MCL 257.625a(6)(b)(ii).

“A person’s refusal to submit to a chemical test as provided in [MCL 257.625a(6)] is admissible in a criminal prosecution for a crime described in [MCL 257.625c(1)] only to show that a test was offered to the defendant, but not as evidence in determining the defendant’s innocence or guilt.” MCL 257.625a(9). “The jury must be instructed accordingly.” Id. M Crim JI 15.9 addresses the defendant’s decision to forgo chemical testing.

“The provisions of [MCL 257.625a(6)] relating to chemical testing do not limit the introduction of any other admissible evidence bearing on any of the following questions:

(a) Whether the person was impaired by, or under the influence of, alcoholic liquor, a controlled substance or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

(b) Whether the person had an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine or, beginning 5 years after the state treasurer publishes a certification under [MCL 257.625(28)], the person had an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(c) If the person is less than 21 years of age, whether the person had any bodily alcohol content within his or her body.” MCL 257.625a(7).

“If a chemical test described in [MCL 257.625a(6)] is administered, the test results must be made available to the person charged or the person’s attorney on the written request to the prosecution, with a copy of the request filed with the court.” MCL 257.625a(8). “The prosecution shall furnish the results at least 2 days before the day of the trial. The prosecution shall offer the test results as evidence in that trial. Failure to fully comply with the request bars the admission of the results into evidence by the prosecution.” Id.

7.​Constitutional Issues

“[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;³⁶ “[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 438, 474 (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 476-478 (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).

The “defendant’s stated fear of economic consequences that would stem from the suspension of his license under the implied-consent law” did not render his consent to submit to a blood draw invalid where he “admitted during [an] evidentiary hearing that he fully understood his choices under the implied-consent law and made an informed, reasoned decision.” People v Stricklin, 327 Mich App 592, 599, 603 (2019) (defendant did not challenge the constitutionality of Michigan’s implied consent law, but instead argued that “the threat of [licensing] sanctions affected the voluntariness of his . . . consent” “because defendant drove for a living and feared the impact that losing his license would have on his economic livelihood”). “Having to make a choice between two undesirable options does not render defendant’s express consent to the blood draw coercive and involuntary.” Id. at 603.

“[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 474-475 (citing McNeely, 569 US 141, 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 opinion³⁷, 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 ___.

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 at 472, citing United States v Leon, 468 US 897, 915, 923 (1984); People v Goldston, 470 Mich 523, 531 (2004).

“[B]lood [that] has been lawfully collected for analysis may be analyzed without infringing on 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.