c. Did the Officer Have Probable Cause to Believe the Crime of Operating While Intoxicated Occurred?
Assuming that the law enforcement officer has only initiated a traffic stop as a result of a civil infraction, which is generally not an arrestable offense, the law enforcement officer must still develop probable cause that the crime of OWI has been committed in order to make an arrest of the driver. Typically, an officer develops probable cause with the help and assistance of the citizen by getting the citizen to engage in a number of exercises that the citizen has the legal right to refuse. Such exercises include requesting the citizen to exit the vehicle, administering Horizontal Gaze Nystagmus (HGN) test, the One Leg Stand and the Heel to Toe sobriety tests. Other tests may include the ABCs, counting backwards, reciting the months of the year, picking a number between and, or similar exercise, along with the preliminary breath test (PBT). Conventional wisdom dictates that a citizen should refuse such voluntary tests.

d. How Does the Court Determine Whether There was Probable Cause?
 The analysis is based on the totality of the circumstances surrounding the traffic stop of citizen. The Court determines whether there are sufficient facts to establish probable cause that the citizen committed the crime of operating while under the influence of alcohol. In the absence of probable cause, an arrest constitutes an unreasonable seizure in violation of the Fourth Amendment. 
In order to determine whether an arrest was supported by probable cause, the Court must determine whether, at the time of the arrest, the “facts and circumstances within [the arresting officer’s] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person to conclude that an individual either had committed or was committing an offense.” This inquiry requires the Court to examine the events leading up to the arrest and then to decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amounted to probable cause.” Courts require the officers to show more than mere suspicion. For example, in Ross v. Meyers, the Sixth Circuit Court of Appeals found that probable cause was not conclusively established based on the following factors:
1. That at 1:00 a.m., the citizen was involved in a single car accident in which he drove into a ditch;
2. That during an interview with the citizen, he had moderate odor of intoxicants on his breath, staggered when he walked, had bloodshot eyes, and had difficulty understanding directions;
3. That the citizen admitted to consuming alcohol on the evening of the accident;
4. And that the responding officers had significant training and experience.

e. Courts have found that evidence of speeding and odor of intoxicants are alone insufficient to constitute probable cause. Therefore, depending on the facts of any given case, a citizen can raise a defense by asserting that the officer lacked probable cause to arrest.

f. How Do Field Sobriety Tests Affect a Finding of Probable Cause?
As referenced above, a citizen’s performance on field sobriety tests is considered in the officer’s analysis of whether there is probable cause to arrest the citizen. However, despite all the tests and exercises typically administered by a law enforcement officer, there are only three standard field sobriety tests that have any empirical data associated with the individual’s performance of the test and being above the legal limit. Those three tests are the Horizontal Gaze Nystagmus (HGN), the Walk and Turn, and the One Leg Stand. The empirical data is specifically supported with research and studies both with regard to the standardized field sobriety tests and with regard to the random exercises that are generally asked to be performed. 
With regard to the standard field sobriety tests, there is data that supports the conclusion that there is more than just a hunch that a person is above the legal limit when the standardized field sobriety tests are administered properly and the appropriate clues are noted. For example, if an officer notes four out of six possible clues while administering the HGN, there is a 77 % probability that the individual is above the legal limit. If an officer observes two or more clues in the One Let Stand and Walk and Turn, the probability is 68% and 65%, respectively, when the tests are properly administered. The percentages become more accurate when the battery of the three standardized field sobriety tests is administered.

g. What if the Officer Failed to Properly Administer the Field Sobriety Tests?
Few, if any, officers administer the standard field sobriety tests properly in accordance with the National Highway Traffic Safety Administration (NHTSA) protocol. In People v. Mullen, the Michigan Court of Appeals discussed the effect of improperly administered field sobriety tests on an officer’s finding of probable cause. In Mullen, the citizen, after performing a variety of field sobriety tests, was arrested. The citizen refused the Datamaster and the arresting officer secured a search warrant for the citizen’s blood. The issue in Mullen was whether, after striking improper information from the search warrant, there was sufficient information to support a finding of probable cause. What is important to note is that the Court, in determining whether there was probable cause, did not consider the results of the improperly administered Horizontal Gaze Nystagmus (HGN) test. This issue was also specifically addressed with regard to the HGN test in People v. Berger, wherein the Michigan Court of Appeals stated that the HGN test is scientific evidence, and held that the necessary foundation for the introduction of “evidence regarding the HGN test in Michigan is evidence that the test was properly performed and that the officer administering the test was qualified to perform it.” In Daubert v. Merell Dow Pharmaceuticals,30 the United States Supreme Court articulated “in order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by scientific method.”  The Court went on to state that “[p]roposed testimony must be supported by appropriate validation – i.e., ‘good grounds,’ based on what is known,” which as the Court stated, establishes a standard of evidentiary reliability. As to the standardized field sobriety tests, the Court of Appeals in Mullen specifically held that the officer’s “incorrect administration of the HGN test led to an inaccurate interpretation of the results…”And the Court, in analyzing how the test should have been performed relied on NHSTA standards, which emphasizes that validation of test results applies only when:
• The tests are administered in the prescribed standardized manner
• The standardized clues are used to assess the subject’s performance
• The standardized criteria are employed to interpret their performance
• And that if “any one of the standardized field sobriety test elements is changed, the validity is compromised. 

h. ”And further that “THE STANDARDIZED FIELD SOBRIETY TESTS ARE NOT AT ALL FLEXIBLE, THEY MUST BE ADMINISTERED EACH TIME, EXACTLY AS OUTLINED IN THIS COURSE.”

i. Am I Required to Do the Field Sobriety Tests?
Often a law enforcement officer may administer, or attempt to administer a series of standard or non-standard field sobriety tests. Not only are you not required to do the field sobriety tests, conventional wisdom is that a citizen should refuse to do such tests. A citizen is not required to cooperate or engage in these tests voluntarily, and none of the tests can be performed without a citizen’s cooperation. When an officer administers such tests, rarely can the officer identify the number of clues, a standard method of administration, or a probability that if the citizen fails that the citizen is above the legal limit. The reason why is because there are number of reasons why a citizen might fail these tests without regard to alcohol consumption, such as education, fatigue, and particularly, nervousness.

j. What is the Difference Between Standardized and Non- Standardized Field Sobriety Tests?
 The only Standardized Field Sobriety Tests are the Horizontal Gaze Nystagmus test, the One Leg Stand, and the Heel to Toe test. The reason these are considered “standardized” tests is because there is empirical data supporting the proposition that there is a direct correlation between failure of the test and being above the legal limit. Any other exercises are considered non-standardized tests. Because the non standardized tests are not as reliable and do not have empirical data to support any correlation between a subject’s performance and level of impairment, proper administration of the standardized field sobriety tests are essential.


k. What is a Preliminary Breath Test and Am I Required to Take it?
Following the administration of the standardized field sobriety tests and non-standardized field sobriety tests, a law enforcement officer generally requests a citizen to submit to a preliminary breath test (PBT). Pursuant to Michigan Administrative Code Rule 325.2655(2)(b) “[a] person may be administered a breath test on a preliminary breath alcohol test instrument only after it has been determined that the person has not smoked, regurgitated, or placed anything in his or her mouth for at least 15 minutes.”
The purpose of the above referenced administrative rule is to ensure the accuracy of the preliminary breath test results.36 When an officer does not comply with the administrative rules for the administration of such tests, suppression for purposes of probable cause may be required.37 A PBT is voluntary, but refusal of a pbt results in a civil infraction, along with a fine and court costs. If you are under 21, two points will also be added to your driving record. If you hold a commercial driver’s license, a refusal will result in an out of service order along with other consequences as mandated by the Secretary of State.

l. What is a Datamaster/Breathalyzer and Am I Required to Take it?
A Datamaster is the chemical breath test administered on a citizen at the jail after he/she is arrested for operating while intoxicated. In People v Fosnaugh,38 the Michigan Court of Appeals addressed the admissibility of a chemical breath test. In Fosnaugh, the Court of Appeals, citing to the Michigan Supreme Court decision in People v. Wager, found that in order for the Datamaster results to be admissible, the operating agency must follow the administrative rules affecting the reliability of the test. Specifically, the Court of Appeals ruled as follows:
To be admissible, the test results must be both relevant and reliable. People v Wager, 460 Mich. 118, 126; 594 N.W.2d 487 (1999); People v Campbell, 236 Mich. App. 490, 504; 601 N.W.2d 114 (1999); People v Wujkowski, 230 Mich. App. 181, 186-187; 583 N.W.2d 257 (1998). Further, suppression of test results is required . . .when there is a deviation from the administrative rules that call into question the accuracy of the test. Id.

MCL 257.625a requires that the “sample… of breath shall be taken and collected in a reasonable manner.”39 Also, as contained in MCL 257.625a(6)(g), the state police formulated rules regarding the administration of the chemical tests.40 These rules are designed to ensure the accuracy of the results.41 Rule 325.2653, entitled “Equipment Accuracy,” requires that the testing device be inspected and verified for accuracy at different time intervals.
Rule 3. (1) An evidential breath alcohol test instrument shall be verified for accuracy at least once during each calendar week, or more frequently as the department may require, by a class II, class IIIA, or class IIIB operator. The test for accuracy shall be made in a prescribed manner using a standard alcohol solution that is approved by the department. For the instrument to meet the requirements for accuracy, a test result of .076 to .084, inclusive, shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor. Other vapor concentrations shall show proportionally accurate results.
(2) A preliminary breath alcohol test instrument shall be verified for accuracy at least monthly, or more frequently as the department may require, by a class IIIA or class IV operator. The test for accuracy shall be made in a prescribed manner using a standard alcohol solution that is approved by the department. For the instrument to meet the requirements for accuracy, a test result of .076 to .084, inclusive, shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor.
(3) Approved evidential breath alcohol test instruments shall be inspected, verified for accuracy, and certified as to their proper working order by a certified class IV operator or the instrument manufacturer’s authorized representatives approved by the department within 120 days, inclusive, of the previous inspection.
Pursuant to the administrative guidelines, the readings from the log should fall between 0.076 and 0.084 grams of ethanol per 210 liters of breath.42 When the calibration logs fall outside the required range, the Datamaster may be suppressed as it does not satisfy the criteria as set forth in Fosnaugh for it to be admissible at trial.
Under Michigan’s Implied Consent Law, all drivers are considered to have given consent to a breathalyzer. If you unreasonably refuse a breathalyzer, six points will automatically be added to your driving record and your license will be suspended for one year (two years for a second refusal within seven years). This suspension can be appealed to the Secretary of State if done within 14 days of the date of your arrest and refusal. If you miss the 14 day deadline, a more limited appeal is also available in Circuit Court. 

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