The Michigan chapter of the American Civil Liberties Union plans to file a lawsuit against Bay City today regarding an alleged Constitutional violation in the city’s minor in possession of alcohol policies. The ACLU claims the practice of forcing pedestrians to submit to a Breathalyzer test without a search warrant or face a $100 fine is illegal.
“It’s time to put an end to an unconstitutional practice. In a free society, the police can normally not force citizens to submit to a search without a search warrant,” Michigan ACLU Director Michael Steinberg said.
The issue comes from an August 2001 incident when a Bay City police officer compelled a 20-year-old woman, Jane Spencer, to take a Breathalyzer test, or pay a $100 fine. Spencer had been leaving a park after rollerblading with friends when two officers approached her and demanded she blow into a Breathalyzer. She only complied after one of the officers threatened her with the fine, and results showed she did not have alcohol in her system.
“The entire experience was demeaning,” Spencer said in a written statement. “I want to make sure that police stop harassing innocent young people by forcing them to take Breathalyzer tests.”
Steinberg said this is not an isolated incident, but an act that has occurred repeatedly all over the state, including at the University of Michigan.
“It’s a common practice from the complaints we’ve been hearing for police to stop someone simply walking across campus,” Steinberg said.
Steinberg added a person cannot be given a Breathalyzer test unless a person is under arrest, which can only happen if an officer finds probable cause. The lawsuit does not apply to driving cases because driving is a privilege, not a right, he said.
Steinberg said there are similar ordinances in towns across Michigan, in addition to a state law. But he said he believes Michigan is unusual in these regulations.
“We’re not aware of other states that force students and other people under age 21 to take a Breathalyzer test without a warrant, or to face a financial penalty,” he said.
The Bay City ordinance on the purchase, consumption, or possession of alcoholic liquor by a person less than 21 years of age states, “A peace officer who has reasonable cause to believe a person less than 21 years of age has consumed alcoholic liquor may require the person to submit to a preliminary chemical breath analysis.” But the ordinance does not define what reasonable cause is.
Bay City Police Sgt. Mark Turner said officers use their personal observations in order to decide whether they have the right to ask someone to blow into a Breathalyzer such as if they smell alcohol, or are in a scene where there are bottles or other physical evidence.
He added a search warrant is not required for a Breathalzyer test, but a person’s consent is.
“They have to submit upon a request to a peace officer,” Turner said.