Breathalyzer: For entertainment purposes?

Ontario-based Ladybug Teknologies is distributing the SipSmart breath screening device, which could be coming to a bar near you.

The idea is that bar patrons could use the device, which is described in an NPR story as about the size of an ATM machine, to test their blood alcohol levels (and presumably their legal ability to drive a car) before hitting the road. It works like this: you feed $5 into the machine, and it supplies you with a disposable plastic mouthpiece to use. You blow into the SipSmart according to instructions, and it kicks out your blood alcohol reading and coupon for a taxi cab company.

One of the bar patrons quoted in the story said it’s nifty because most people have no idea what it feels like when they’ve reached their legal limit of “safe to drive.” That’s a great idea, from a self-awareness standpoint.

But for practical purposes, it may not be all that … well, practical. According to the reporter, older and presumably more responsible drinkers aren’t all that interested in the device because they’re either embarrassed to use it, or simply don’t want to know.

Bar owners aren’t nutty about it because, according to the story, if a customer knows that he’s had “enough” he’s going to stop drinking, which affects a publican’s bottom line.

And some of the younger users are having some fun with it, which in theory could boost sales — those crazy kids are using it for betting or competitive purposes, to see who could get the machine to give the highest reading.

So that made me wonder — could the SipSmart create a liability for a tavern owner before a patron ever leaves the building and creates a hazard on the roads? Let us know what you think.

District court judge: State lab DUI tests ‘not reliable’

The Lansing State Journal reports this morning that 79th District Court Court Judge Peter Wadel has refused to admit blood-alcohol test results from the state crime lab in a drunken-driving case, saying that the lab’s test results “are not reliable.”

From the LSJ:

[Wadel] said the crime lab — which conducts blood and other forensic tests in cases from around the state — does not report an error rate, or margin of error, along with blood-alcohol results.

Police routinely report a single number for blood-alcohol content in drunken-driving cases. But East Lansing attorney Mike Nichols, who is handling the case in Mason County — which includes the city of Ludington along Lake Michigan — said there are no absolutes in science.

“Everyone says a blood test is so accurate. Well, it’s not,” Nichols said. “That’s what this judge has ruled.”

Not including a range of possible results, Nichols said, ignores the uncertainties in the collection, handling, analysis and reporting process.

Here’s the full story from LSJ reporter Kevin Grasha.

Chipping away at the Fourth Amendment?

“Today the majority empowers private citizens to select certain motorists for warrantless searches and seizures conducted by police officers lacking probable cause or any reasonable suspicion of criminal conduct.”

– Michigan Court of Appeals Judge Elizabeth L. Gleicher, dissenting in People v. Barbarich (majority opinion here).

Michigan State Police Officer Christopher Bommarito was patrolling the Downriver area in Wayne County on St. Patrick’s Day. He checked out Malarkey’s Bar on Dix Road, where a large party tent was set up in the parking lot. There were lots of folks but no apparent problems, so he pulled back out onto Dix Road.

A red pickup truck passed him going in the other direction. A woman was following the pickup. As she passed Bommarito, she made eye contact with him, pointed to the red pickup in front of her and mouthed the words “almost hit me.”

Bommarito made a u-turn, turned on his flashers and siren and followed the pickup, which turned into Malarkey’s parking lot. The woman continued to drive down Dix Road and was never heard from again.

The pickup driver was drunk, said Bommarito. At an evidentiary hearing, Bommarito admitted that he personally didn’t observe anything from defendant’s driving that would have aroused his suspicions, nor did he make any attempt to talk to the gesturing tipster before stopping defendant.

The prosecutor charged the driver with OWI. The district court let the case go forward. The circuit court saw a Fourth Amendment problem and dismissed the case, ruling that Bommarito’s stop was based on a hunch, rather than a reasonable articulable suspicion.

On appeal to the COA, Judge Kristen Frank Kelly, joined by Judge Brian K. Zahra (before he was appointed to the Michigan Supreme Court), reinstated the charge.

“Certainly more facts could have strengthened the officer’s suspicion,” Kelly admitted, “but in cases involving tips of erratic driving of a motor vehicle, fewer facts are necessary to justify the investigatory stop.” Kelly cited United States v. Wheat, 278 F. 3d 722 (8th Cir. 2001), and People v. Whalen, 390 Mich. 672 (1973) in support.

“‘[T]he Fourth Amendment does not require a policeman to simply shrug his shoulders and allow a crime to occur or a criminal escape,'” Kelly wrote, quoting Whalen.

Had the officer waited to personally observe defendant engage in dangerous and erratic driving, his suspicion would have surpassed a reasonable articulable suspicion and become a probable cause to seize defendant and issue an appropriate citation. “Thus, police would lose the intermediate step of investigatory stops based on reasonable suspicion.” Wheat, 278 F 3d at 733.

Here, sufficient indicia of reliability supported the citizen’s tip and Bommarito was justified in conducting the investigatory stop. The tip provided sufficient information to accurately identify the vehicle and to create an inference that a crime or civil infraction had occurred; and, the tip was also sufficiently reliable, based on the woman’s contemporaneous observations.

Under the totality of the circumstances, Bammarito had a reasonable articulable suspicion that justified an investigatory stop of defendant’s vehicle. The circuit court erred by concluding otherwise.

In her dissent, Gleicher responded:

In my view, the majority ignores the critical difference between stopping a vehicle on the basis of a tip suggesting a crime in progress, and a tip hinting at the commission of a civil traffic offense. Relying largely on Wheat, 278 F3d 722, the majority decries the danger attendant on waiting “to personally observe defendant engage in dangerous and erratic driving.” …

But here, unlike in Wheat, the evidence available to the arresting officer simply did not support that the tipster had witnessed the erratic, dangerous maneuvers of a drunk driver. …

In stark contrast [to Wheat], the tip at issue here gave no information concerning the circumstances of the near miss, and no objective data on which to ground a conclusion that Barbarich was drunk.

“If failure to follow a perfect vector down the highway or keeping one’s eye on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” [quoting United States v. Freeman, 209 F. 3d 464 (6th Cir. 2000)]

I would hold that an uncorroborated tip emanating from an unidentifiable source lacking any pertinent detail and suggesting only an ordinary traffic violation cannot serve as a vehicle for violating the Fourth Amendment, and thus dissent.

AG: No pending drunken driving prosecution necessary to get blood alcohol results

A county prosecutor does not need to initiate a criminal prosecution before obtaining blood alcohol test results from a medical facility treating a driver involved in a traffic accident.

That’s the formal opinion of Michigan Attorney General Mike Cox, in response to a query from Alger County Prosecuting Attorney Karen A. Bahrman.

Cox, in Opinion No. 7237, phrased Barhman’s question as “whether, under subsection (6)(e) of section 625a of the Michigan Vehicle Code, MCL 257.625a(6)(e), an actual criminal prosecution must be pending before a prosecutor may obtain the results of blood alcohol tests taken by a medical facility in the course of providing medical treatment to a driver involved in a motor vehicle accident.”

Bahrman had “consistently interpreted this section as authorizing a prosecutor to secure blood alcohol test results before seeking a warrant where an accident occurred that involved other evidence of intoxication while driving.”

Cox, in his opinion, said that Bahrman’s interpretation is correct.

Reading the operative words of MCL 257.625a(6)(e) in context, the phrase “for use in a criminal prosecution as provided in this subdivision [subdivision (e) of subsection (6)]” plainly operates as a limitation on the purpose for which the test results may be used by a prosecutor who requests them, but it does not impose a particular time frame within which a request for results must be made or imply the stage of criminal proceedings that must have been reached before results may be requested or disclosed. That is, once requested, the results of a chemical analysis must be disclosed in order for a prosecutor to use them “to show the amount of alcohol or presence of a controlled substance or both in the person’s blood at the time alleged” in a criminal proceeding. Had the Legislature intended the phrase to only apply in connection with a “pending” criminal prosecution, it could have included this qualifier; in the absence of language providing this additional temporal requirement, however, one may not be implied.

Should employer pay for driving deaths caused by worker they allegedly knew was drunk?

“A judge is expected to decide (today) the fate of a lawsuit filed by widower Gary Weinstein, whose wife and two young sons were allegedly killed by drunk driver Thomas Wellinger four years ago in Farmington Hills,” is reporting.

“Weinstein isn’t suing Wellinger; he’s suing Wellinger’s employer, Livonia-based Unigraphics Solutions, for an unspecified amount.

“The lawsuit filed by Weinstein’s attorney alleges that Wellinger was visibly drunk at work the day of the accident, according to the Detroit News, and a boss told him his behavior was ‘unacceptable.'”

Judge asked to bar drunken driver’s statements

“A Roseville police investigator testified Wednesday that Frances Dingle not only seemed lucid, but she read her rights aloud before recounting what she remembered from when she drove drunk and slammed her van into a car on Gratiot in Roseville — killing four teens,” reports The Detroit Free Press.

“But Dingle’s lawyer said any statements she made about the March 16 accident should never reach jurors’ ears because police didn’t know if she was truly coherent when she gave the interview.

“A Macomb County Circuit Court judge is to hear more testimony and make a decision about the admissibility of the statements at trial when the hearing continues Oct. 29.”

Former Detroit Lions receiver pleads to drunken driving charge

Charles Rogers, the former Detroit Lions wide receiver whose pro football career was tackled by collar bone injuries and a substance abuse suspension, pleaded guilty yesterday to a drunken driving charge, according to a report posted on

Judge Brian MacKenzie of the 52nd District Court in Novi ordered twice-daily substance abuse testing after police found Rogers passed out behind the wheel of his still-running car.

Said Rogers of his behavior: “I was wrong. When you mess up in life you have to pay the consequences.”