The American Civil Liberties Union of Michigan sent a letter today to oppose a proposed Ferndale Police Department that would permit officers to give breath tests to patrons of restaurants and bars without probable cause to believe that the person committed a crime.
“There is nothing illegal about drinking alcohol in a restaurant or bar,” said Kary L. Moss, Executive Director of the ACLU of Michigan. She added, “This proposal would allow police officers to harass people for no reason. They’re saying it will be voluntary, but we all know how hard it is to not go along with what a policeman asks you to do.”
In the letter to the Police and Fire Board, Rozanne Sedler, ACLU Oakland County Branch chair, explained that “requiring a patron at a restaurant or bar to submit to a breath test is prohibited absent a search warrant supported by probable cause.” However, since it is not a crime to drink alcohol in a restaurant or bar, there is no basis for issuing such a warrant. Further, unlike drivers who give “implied consent” to submit to a breathalyzer when they get behind the wheel, a person does not give up the right to be free from bodily searches by entering a bar.
Sedler also noted, “The prospect of Ferndale police officers roaming bars and restaurants and demanding that law abiding citizens breath into a machine is more reminiscent of a police state than a freedom-loving society where civil liberties and privacy are cherished.”
Michael J. Steinberg, legal director of the Michigan ACLU, will attend the Police and Fire Board meeting on Monday to respond to any questions the Board may have about the letter.
The letter in its entirety follows:
November 9, 2001
Police and Fire Board
City of Ferndale
300 E. Nine Mile Rd.
Ferndale, MI 48220
Re: Proposal to Permit Police Officers to Administer Breath Tests to Bar and Restaurant Patrons To the Police and Fire Board of the City of Ferndale:
The Oakland County Branch of American Civil Liberties Union recently learned of the proposal in Ferndale to adopt a policy permitting the police to administer preliminary breath tests (PBT’s) to patrons of commercial establishments where alcohol is served. We write to urge you to reject the proposal. Requiring patrons to take PBT’s would not only constitute an unwarranted invasion of privacy and police harassment, but it would also violate the U.S. Constitution.
The Fourth Amendment to the United States Constitution forbids police from conducting unreasonable searches and seizures. As a general matter, police officers cannot search a person unless they obtain a search warrant from a judge. A judge cannot issue a warrant to search a person unless the officers establish that there is “probable cause” to believe that the person has committed a crime and that the search will produce evidence of the crime.
A Breathalyzer or breath test is unquestionably a search within the meaning of the Fourth Amendment. See, e.g., Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 616-17 (1989) (“[s]ubjecting a person to a breathalyzer test . . . implicates concerns about bodily integrity and, like the blood-alcohol test . . . should also be deemed a search.”). Thus, requiring a patron at a restaurant or bar to submit to a breath test is prohibited absent a search warrant supported by probable cause.
However, the mere fact that a person has been drinking alcohol in a restaurant or bar cannot serve as sufficient cause to issue a warrant to conduct a breath test. The reason is simple: it is not a crime for an adult to drink or to drink “too much” in a restaurant or bar. It is worth emphasizing that, from a legal perspective, drinking alcohol in a bar or restaurant is very different from drinking while driving for at least two reasons. First, a driver violate
Michigan law if he or she drives with a blood-alcohol content of .10 or more. Mich.Comp.Laws § 257.625(1)(b). However, there exists no law forbidding restaurant patrons from drinking. Second, when a person drives a car, he or she gives “implied consent” to submit to chemical tests under certain circumstances. Mich.Comp.Laws § 257.625c(1); People v. Bouchard-Ruhland, 460 Mich. 278, 293-95 (1999). In contrast, a person who enters a bar, like a person walking down the street, does not waive his or her rights to be free of bodily searches. 
Additionally, it should be noted that while there are laws that forbid restaurant and bar owners from serving alcohol to patrons that appear to be intoxicated, the determination of whether to serve a person is never made based upon a blood-alcohol test. Rather, the legal test is whether the patron is “visibly intoxicated” based upon his or her conduct. Mich.Comp.Laws § 436.1801(2). Therefore, even if it requiring a patron to give a breath test was constitutional, the mere fact that the patron’s blood alcohol level exceeded .10 would not prove that the bar or restaurant owner violated the law. Similarly, PBT’s are not necessary to enforce other potentially illegal activities in a bar such as disorderly conduct, serving alcohol to minors, building capacity laws and the like.
Finally, and perhaps most importantly, the proposal should be rejected for policy reasons as well as legal reasons. The prospect of Ferndale police officers roaming bars and restaurants and demanding that law abiding citizens breath into machines is more reminiscent of a police state than a freedom-loving society where civil liberties and privacy are cherished. For this reason, and for the legal reasons set forth above, we strongly urge you to reject the proposal permitting police officers to require restaurant and bar patrons to submit to PBT’s.
Rozanne Sedler, President
Oakland County ACLU
Jan Leventer and Steve Cozart
Co-Chairs of Oakland Co. ACLU Lawyers Committee