No Breathalyzers For Pedestrians

By: Associated Press
By: Associated Press

A federal judge has ruled that forcing a non-driver in Michigan to submit to a preliminary breath test without a search warrant is unconstitutional.
U.S. District Judge David Lawson in Detroit issued an injunction Wednesday blocking enforcement of a state law that penalizes pedestrians under 21 who refuse to submit to such a test.
The American Civil Liberties Union, which had sued on behalf of four college students, says Michigan is the only state in the country that requires a pedestrian to submit to a breath test without a warrant.
"This is a tremendous victory for the civil liberties of young adults," said Kary Moss, executive director of the ACLU of Michigan.
In 2006, Mount Pleasant and Isabella County agreed to pay $5,000 to Cullin Stewart and Samuel Maness and stop warrantless pedestrian breath tests until Lawson issued a final ruling.
Both Stewart and Maness attended a 2003 post-prom party in Isabella County where, according to the lawsuit, an interagency police task force called the "Party Patrol" broke up the party, placed the students in a circle and asked if they had been drinking.
They had to blow into a portable breath tester, according to the suit. Stewart was not charged, but Maness was issued a citation accusing him of being a minor in possession of alcohol.
Michigan State Police, Central Michigan University and Saginaw County's Thomas Township Police Department also are defendants in the case.
Telephone messages seeking comment were left at the offices of state police spokeswoman Shanon Akans and of Matthew A. Romashko, Mount Pleasant's city attorney.
Oral arguments in the case were presented Sept. 27, 2006.
Lawson ruled that the state law requiring a pedestrian to submit to a breath test without a warrant amounts to unreasonable search and seizure in violation of the U.S. Constitution's Fourth Amendment.
"The statute plainly does not require the police officer to obtain a warrant before taking a breath sample from a minor, which the parties acknowledge would be a search within the meaning of the Fourth Amendment," the judge wrote.
"There is no dispute that there is a preference expressed in the Fourth Amendment that searches, to be reasonable, be sanctioned by the issuance of a warrant by a neutral and detached judicial officer. Nor does the statute require that any of the recognized exceptions to the warrant requirement exist before the police officer compels a minor to submit to a breath test."


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