People v. Blow
No. 288781.
Mich App, December 22, 2009
In People v. Blow, No. 288781 (Mich App, December 22, 2009), in which the defendant faced charges of operating while intoxicated, MCL 257.625(1), third offense, MCL 257.625(9), the Wayne County Prosecuting Attorney’s Office appealed by leave granted an order suppressing the results of Datamaster breathalyzer tests. The Court of Appeals reversed.
At approximately 2:00 a.m., in August 2007, defendant was driving home when Officer Curtis Johns observed him speeding 20 miles per hour above the speed limit. Officer Johns followed defendant and pulled him over after seeing him cross the center line. Following the field sobriety tests, defendant pleaded with Officer Johns to let him go because an arrest would ruin his career and he was only a mile away from home. Not persuaded, Officer Johns administered a Preliminary Breath Test (PBT). Defendant’s PBT result was 0.17. Officer Johns arrested defendant for operating a vehicle under the influence of liquor and transported him to the police station. They arrived at approximately 2:17:47 a.m., and the parties agreed that defendant was seated in the booking room by 2:18:24 a.m. Defendant remained in Officer Johns’ presence until 2:45:28 a.m.,3 when Officer Johns administered the first Datamaster test. The first test registered 0.17 Blood Alcohol Content (BAC). Two minutes later, Officer Johns administered the second test, which registered 0.18 BAC.
The defendant moved to suppress arguing that there was no probable cause for the arrest and that the administrative procedures for conducting the DataMaster test were not followed. The prosecution, argued that even without the PBT result, there was probable cause to make the arrest. Regarding the Datamaster test at the police station, the prosecution argued that any technical violations of the administrative rule requiring a 15-minute observation period before using the Datamaster were not substantial enough to warrant suppressing the results.
The court of appeals agreed with the prosecutor and held that viewing all of the evidence available to the officer at the time of the arrest, there were enough facts and circumstances present such that a fair-minded person with average intelligence could conclude that there was a substantial chance that defendant was driving while intoxicated.
As to the next issue, the court of appeals held that the accuracy of the first test cannot be seriously questioned. The court noted that defendant was handcuffed behind his back for more than one minute and 25 seconds before the observation period arguably started. Therefore, he could not have placed anything in his mouth during this time. Moreover, there is no evidence that defendant regurgitated during this small window, and no evidence that he regurgitated or placed anything in his mouth throughout the observation period. Second, a subsequent Datamaster test was administered at 2:47:46 a.m.
Because it occurred 15 minutes and 53 seconds after the time defendant argued the observation period began, the court stated it complied with the 15-minute observation period requirement. Again, the first test yielded a 0.17 BAC result and the second test yielded a 0.18 BAC result. Thus, the accuracy of the allegedly “compromised” first test cannot be seriously called into question, since it is bolstered by the result of the second test.
