September 10, 2015

DETROIT – The ACLU of Michigan emailed letters today to 425 city, village, and university attorneys in Michigan urging them to instruct their respective police forces to stop forcing minors to take unconstitutional Breathalyzer tests. The request is based on a recent federal court ruling that forbids officers to compel pedestrians to submit to a breath test unless they first obtain a search warrant from a judge.

“The police may not ignore the Bill of Rights in an attempt to identify and punish underage drinkers,” said Michael J. Steinberg, ACLU of Michigan Legal Director.  “We are confident that when the city, village, and university attorneys read the federal court decision, they will instruct the police to change their practices and abide by the Constitution.”

The court ruling was issued in an ACLU case brought on behalf of a 19-year-old rollerblader, Jamie Spencer, who was forced to take a breath test by the Bay City police even though she had not been drinking.

U.S. District Court Judge David M. Lawson, in a 23-page opinion, 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 a motor vehicle. 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.”

The ACLU letter states that while Judge Lawson’s decision struck down a Bay City Ordinance, the ordinance is identical to a state law and many ordinances throughout the state, including in Ann Arbor and East Lansing.  It urges the attorneys to instruct police chiefs and campus directors of public safety to change their policies to conform to the Constitution.

“We are asking police to comply with the Constitution and to stop using a tactic that has become common in Michigan, but isn’t used anywhere else in the country,” said cooperating attorney David Moran, who signed the letter with Steinberg.  Michigan is the only state in the country 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.