Michigan Court Strikes Down Breathalyzer Tests for Pedestrians as Unconstitutional

Affiliate: ACLU of Michigan
November 25, 2003 12:00 am

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ACLU Praises Ruling as Major Civil Liberties Victory for Young Adults


DETROIT – In a ruling that will impact young adults throughout the state, a federal judge ruled that Bay City police may no longer force pedestrians under age 21 to take a Breathalyzer test without obtaining a search warrant, the American Civil Liberties Union of Michigan announced today.

“This is a tremendous victory for the civil liberties of young adults,” said Kary Moss, Executive Director of the ACLU of Michigan. “For years, police officers throughout Michigan have violated the rights of countless college students and others under the age of 21 by forcing them to submit to breathalyzers without a warrant. We expect other law enforcement jurisdictions to heed the Bay City ruling.”

The case stems from an encounter involving Jamie Spencer, a Bay City resident, with the Bay City police in August 2001, when she was 19 years old. She, her husband and some friends were leaving a city park after rollerblading, when two officers approached Mrs. Spencer and demanded that she blow into a Breathalyzer machine.

She told the officers that she had not been drinking and did not want to take the test. However, when the officers threatened her with a $100 fine, she felt she had no choice. The test indicated that she had not been drinking.

“Even though I had done nothing wrong, the police invaded my privacy,” said Mrs. Spencer. “I am glad that because of this decision, the police will not harass innocent young people in the future by forcing them into such a demeaning situation.”

In a 23-page opinion, U.S. District Court Judge David M. Lawson struck down the Bay City ordinance that makes it illegal for people under age 21 to refuse to consent to a Breathalyzer test. The ruling does not apply to drivers of motor vehicles.

Judge Lawson held that the ordinance violates the Fourth Amendment because (1) a breath test is a search, (2) the Fourth Amendment ordinarily prohibits searches without search warrants, and (3) no exceptions to the search warrant requirement apply.

Judge Lawson further emphasized that “the right to be left alone in public places ranks high on the hierarchy of entitlements that citizens in a free society have come to expect – at least in the context of citizen-police encounters.”

Since the Bay City ordinance is identical to a statewide law, the decision will bring welcome relief to college students across the state, according to Jonathan Knapp, president of the Central Michigan University Chapter of the ACLU.

“It is a well-known and common procedure on campuses across the state for the police to stop students walking across campus on weekend nights and force them to take Breathalyzers whether or not they have been drinking,” said Knapp. “This is a great student rights decision.”

David Moran, an ACLU cooperating attorney, noted that Michigan is the only state in the nation to make it illegal for a minor walking down the street to refuse a Breathalyzer test when the police do not have a search warrant. “We are gratified that the federal court has recognized that the state cannot take away the privacy rights of people just because they are under 21.”

In addition to Moran, Mrs. Spencer is represented by Michael J. Steinberg, Legal Director of the ACLU of Michigan and William T. Street, a volunteer ACLU lawyer from Saginaw.

The complaint and brief can be found on line at http://www.aclumich.org/pdf/briefs/mipbrief.pdf and

The opinion is online at /node/35130

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