ACLU Lawsuit Challenges Unconstitutional Breathalyzer Tests for Pedestrians

August 04, 2005

The ACLU of Michigan filed a federal lawsuit today challenging a police practice of forcing pedestrians under age 21 to take a Breathalyzer test without first obtaining a search warrant.  The case was filed against the City of Bay City on behalf of Jamie Spencer, a 20-year-old woman who was forced by an officer to take a breath test or pay a $100 fine even though she had not been drinking alcohol.

“It is time 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 Michigan ACLU. “The Constitution is clear no search warrant, no Breathalyzer. Police cannot force pedestrians to submit to an unconstitutional search.”

The case stems from an encounter that Mrs. Spencer had with the Bay City police in August, 2001, when she was 19 years old. She, her husband and some friends had just finished rollerblading in a Bay City park and were preparing to leave, when two officers approached Mrs. Spencer and demanded that she blow into a breathalyzer machine.

She told the officers that she had not been drinking and that she did not want to take the test. However, when the officers threatened her with a $100 fine, she felt that she had no choice, and submitted to the test. The test indicated that she had not been drinking.

“The entire experience was demeaning. Even though I had done nothing wrong, the police invaded my privacy,” said Mrs. Spencer. “I want to make sure that police stop harassing innocent young people by forcing them to take Breathalyzer tests.”

The ACLU lawsuit challenges a Bay City ordinance that makes it illegal for a person to refuse to consent to a breath test when asked to do so by the police. According to the ACLU, the ordinance violates the Fourth Amendment prohibition against illegal searches because (1) a breath test is a search, (2) no search warrant is required, and (3) no exceptions to the search warrant requirement are present. The suit does not challenge the requirement that drivers submit to breath tests when there is evidence of drinking because driving is a privilege, not a right.

The Bay City ordinance being challenged is nearly identical to a state law and the case is likely to have statewide impact. “It is common at the University of Michigan for police to stop students walking across campus and force them to breathe into a Breathalyzer machine,” said Robert Goodspeed, a University of Michigan student and president of the campus ACLU. “The police also come into house parties and force everyone present to give a breath test whether they have been drinking or not.”

Mrs. Spencer is represented by David A. Moran, a volunteer ACLU attorney and Wayne State University law professor, Michael J. Steinberg, Legal Director of the Michigan ACLU, and William T. Street, a volunteer ACLU lawyer from Saginaw. Read the complaint.

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