Michigan drivers that have been pulled over on suspicion of drunk driving or DUI, have all had to “blow into this Breathalyzer, please” at one point or another. They would be familiar with the process, but only as it pertains to a DUI. Because up until recently, that was all a Breathalyzer was ever used for. But that may be changing.
The Michigan Court of Appeals recently ruled that the results of a roadside preliminary breath test (PBT) could be used to establish whether or not a person possessing or discharging a weapon is intoxicated at the time. Neither the DataMaster or the Breathalyzer are used for these roadside PBT tests in Michigan. The small machines carried in police cars for use in the field give only preliminary breath test results. For the most part, the test results from the PBT test are not admissible in court. The real test results come from the DataMaster which is located at the police station or county jail.
Under Michigan law, possessing or discharging a firearm while under the influence of alcohol or a controlled substance is illegal. However, it wasn’t until the recent case of People vs. Booker, where our Court of Appeals ruled that a breath test could be used in firearms cases. PBTs have never been used for anything other than DUI and drunk driving cases, which makes this a first.
According to court documents, Booker was arrested by the Farmington Hills Police in Oakland County, MI on October 31, 2014. Police had been dispatched to an apartment complex to investigate a robbery. However, while searching the parking lot, they encountered two people sitting in the back seat of a car.
The two people, Booker and a female, were drinking in the car. Officers found numerous bottles of alcohol in the vehicle with them. Also in the car, in a pocket behind the driver’s seat, was a gun licensed to Booker. Officers confiscated the weapon and administered a PBT test which revealed Booker’s BAC (breath alcohol content) to be 0.15.
Booker was charged with a single count of possession of a firearm under the influence. Michigan law states that anyone who “carries, has in their possession or under their control, or uses in any manner or discharges” a firearm while under the influence of alcohol or a controlled substance is guilty of a misdemeanor. If someone is injured or killed as a result, the charge becomes a felony.
Because Booker had the gun in his possession and was under the influence of alcohol at the time but no one was harmed as a result, he was charged with a misdemeanor. He contested the breath test results in court, hoping to have them thrown out. But as the Court of Appeals ruling shows, the breath test results are admissible in court now in gun charge cases.
We are not sure how this will influence future weapons related cases, but this is the kind of ruling that has been known in the past, to set a precedent. We will continue to watch future weapons related cases in Michigan as they are affected by the use of PBT and DataMaster equipment to keep our clients and readers updated. Our criminal defense team reminds everyone that drinking and driving or drinking and possessing a gun are a horrible combination.
As a side note, we would like to point out that Michigan does not currently use a Breathalyzer brand machine. In our state, the breath test is administered on a DataMaster rather than a Breathalyzer.
