ACLU of Michigan Challenges Breathalyzer Tests for Young Pedestrians

DETROIT - In a case with far-reaching implications for young adults and minors throughout the state, the American Civil Liberties Union of Michigan filed a federal lawsuit today challenging a state law that allows police to force pedestrians under the age of 21 to take a Breathalyzer test without first obtaining a search warrant.

"It is time to stop the widespread practice in this state of punishing young people who are walking down the street for refusing to submit to a Breathalyzer test," said Kary Moss, Executive Director of the ACLU of Michigan. "The Constitution is clear - no search warrant, no Breathalyzer. Police cannot force pedestrians to submit to an unconstitutional search."
Michigan is the only state in the country to make it illegal for young adults and minors who are not driving to refuse a Breathalyzer test when the police do not have a search warrant. Those who refuse to take the test are guilty of a civil infraction and must pay a $100 fine.

The lawsuit has been filed on behalf of two Saginaw Countywomen who were forced by Thomas Township police to submit to breath tests although they had not been drinking, as well on behalf of and two Mount Pleasant men forced to do the same by an interagency police task force that refers to itself as the "Party Patrol."

The Party Patrol is comprised of officers from the Mount Pleasant Police Department, the Michigan State Police, Central Michigan University Police Department and the Isabella County Sheriff's Department. In addition to these municipalities and agencies, the lawsuit also names Governor Jennifer Granholm and Colonel Tadarial Sturdivant, Director of the Michigan State Police Department, as defendants.

Katie Platte was 19 years old when she went to a small party in Thomas Township in July 2004 in honor of a high school classmate who had enlisted in the Marines and was leaving for Iraq. In spite of the fact that Platte was not drinking any alcoholic beverages, the Township police told her and others at the party that if they refused to take a breath test they would go to jail.

"I wasn't drinking or causing a problem," said Platte, now an honors student at Saginaw Valley State University. "You're supposed to be innocent until proven guilty, but in this case young people are assumed guilty until they prove they're innocent by having to take a Breathalyzer test."

According to Platte, the police in Thomas Township are known to frequently break up parties attended by young adults and force everyone at the party under the age of 21 to submit to Breathalyzer tests. University police officers recently raided an apartment in the building where she lives and forced all of those under the age of 21 to submit to Breathalyzer tests without a warrant, even though they were not driving or under arrest.

A second plaintiff, Ashley Berden, was 18 when she attended a party at a friend's house to celebrate her graduation from Swan Valley High School. After she left the party, Thomas Township police officers arrived and found her purse, which she had forgotten. The police came to Berden's house at 4:00 a.m., woke up her family and demanded that she take a Breathalyzer test. The police did not have a warrant and informed Berden that she would be violating the law if she refused the test. The test registered a .00 percent blood-alcohol level, indicating that Berden had not been drinking.

Similar problems have occurred in Isabella County. Cullin Stewart and Sam Maness, two young men from Mt. Pleasant, were at a chaperoned graduation party in May 2003, when the "Party Patrol" arrived and began grabbing students, forcing them to the ground. The students were then placed in a circle and asked whether or not they had consumed any alcohol. Stewart stated truthfully that he had not been drinking, but was nonetheless required to submit to a Breathalyzer test.

A ruling by U.S. District Judge David M. Lawson in November 2003, struck down as unconstitutional a local ordinance that is identical to the state law being challenged today. 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. The ruling does not apply to drivers of a motor vehicle and the ACLU did not challenge the ability of officers to give breath tests to suspected drunk drivers without a warrant because driving is a privilege, not a right.

Following Judge Lawson's decision, ACLU of Michigan Legal Director Michael J. Steinberg sent letters or emails to 425 city, village and university attorneys advising them to urge their local law enforcement agencies to stop forcing minors to take unconstitutional Breathalyzer tests. "We expected that the Bay City ruling would stop the abuse of young people's privacy rights throughout the state, but many municipalities and the state police have ignored the judge's decision," said Steinberg. "We hope that today's case will stop unconstitutional Breathalyzer tests once and for all."

The plaintiffs are being represented by ACLU cooperating attorneys Marshall Widick, William Street and David A. Moran, along with Steinberg and Moss.