PEOPLE v. CHOWDHURY
775 N.W.2d 845 (2009)
285 Mich. App. 509
Docket No. 288696.
Court of Appeals of Michigan.
Submitted August 5, 2009, at Detroit.
Decided September 10, 2009, at 9:00 a.m.
Lori Grigg Bluhm, City Attorney, and Allan T. Motzny, Assistant City Attorney, for the plaintiff.
Richard A. Levitt for the defendant.
Before: STEPHENS, P.J., and JANSEN and WILDER, JJ.
PER CURIAM.
Plaintiff, the city of Troy (City), appeals by leave granted the circuit court's denial of leave to appeal, which allowed to stand the district court's order striking down a City ordinance and suppressing certain evidence collected from defendant during a preliminary breath test (PBT). Having found no error in the district court's ruling or the circuit court's denial of leave to appeal, we now affirm.
IA number of young adults under 21 years of age were allegedly drinking alcoholic beverages at a house party in the City. Police officers responded to a call and arrived to find a group of individuals leaving the party on foot. The officers detained the group of young adults, which included defendant. An officer asked each of the young adults whether he or she had been drinking alcohol. Some of the young adults indicated that they had been drinking, and others indicated that they had not. The officer divided the young adults into two smaller groups, separating those who admitted that they had been drinking from those who denied drinking at the party. The officers then proceeded to administer PBTs to the young adults. One of the officers administered a PBT to defendant, which resulted in a reading of "0.025." It is undisputed that the officer did not request defendant's consent before administering the PBT. Neither that particular officer, nor any other officer, obtained a search warrant before administering the PBTs.
The City ordinance at issue in this case, Troy Ordinance § 98.10.03, provides in relevant part:
A person less than 21 years of age shall not purchase or attempt to purchase alcoholic liquor, consume or attempt to consume alcoholic liquor, or possess or attempt to possess alcoholic liquor. A person who violates this section is guilty of a misdemeanor....
* * *
1. Although the district court suppressed the evidence collected from defendant during the PBT, it did not grant defendant's motion to dismiss. The district court remarked, "I'm not going to dismiss the case yet [because] the People might be able to prove it without a PBT test, I don't know whether they can or not, but I am not going to go so far as to dismiss it yet."
2. In cases such as this, wherein a district court ruling has been appealed in the circuit court, we refer to the district court as the "trial court." See MCR 7.101(A)(1).
3. The Platte court was "not prepared to conclude as a matter of law that the offense of minor in possession of alcohol is so insignificant a transgression that warrantless searches can never be conducted to gather evidence of this crime. If officers must act so quickly to prevent the immediate destruction of evidence that they cannot obtain a search warrant within the time it would reasonably take to procure one, then administration of a PBT without a warrant may be consistent with the Fourth Amendment...." [Platte, 504 F.Supp.2d at 246 (emphasis deleted).]
The Platte court noted that, on the specific facts of that case, there remained "fact questions on the material issue of whether exigent circumstances existed." Id.
4. It is true, as the City notes, that the United States Supreme Court in Skinner found breath tests to be less intrusive than blood tests. Skinner, 489 U.S. at 625-626, 109 S.Ct. 1402. But this conclusion was in the context of a broader holding that chemical tests administered to railroad employees for safety reasons—and not for the purpose of ordinary crime detection—met the "special needs" exception to the search warrant requirement. See id. at 633-634, 109 S.Ct. 1402. As discussed previously, the "special needs" exception is inapplicable to law enforcement's desire to detect evidence of ordinary criminal wrongdoing, such as in the case at bar. Spencer, 292 F.Supp.2d at 941.
5. According to the testimony of certain witnesses, one of the officers had stated that anyone who refused to take the PBT would go to jail. Other witnesses testified somewhat differently. However, even these other witnesses testified that the officer had told them that if they refused to take the PBT, he would "take us to the station" or to "the police station." One witness testified that although he could not recall the exact words used by the officer, he had assumed that he would go to jail if he refused to take the PBT.