Vice Squad
Sunday, November 30, 2003
Youthful Pedestrians Win One in Michigan

Drivers have to submit to Breathalyzer tests requested by the police or
suffer serious consequences -- even when the police do not have a
search warrant. In Michigan, pedestrians under the age of 21 were
subject to a similar regime. A nineteen-year old walking down the street
could be asked by an officer to submit to a Breathalyzer, and could be
fined for refusing to do so. Not anymore, following a ruling last week by
federal district judge David Lawson. Here's an excerpt from the ACLU
news release
on the case:

"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.'"

One of the interesting aspects of this decision, at least for Vice Squad,
is that the case was brought by a factually innocent party, a young
woman who had not been drinking but who did not want to take the
Breathalyzer. She submitted under the threat of a $100 fine and indeed,
the test confirmed that she had not been drinking. Would the decision
have turned out the same way if she had been, say, above the state
BAC limit? (Vice Squad has harped on the issue of search and
seizure law being dominated by cases involving factually-guilty
in the past.)

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