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The Alcohol Enforcement Unit: Myths, Truths, and Legality By Robert E. Martin On a sunny pleasant day in late May about 80 tavern, bar, and restaurant owners convened at Candlelight Lanes in Bridgeport to discuss a threat not only affecting their businesses, but going to the core of the United States Constitution's protections against unreasonable searches & seizures. At issue was a new 'pilot program' started by the Saginaw County Sheriff Department and the Michigan State Police that allegedly involved officers entering establishments and demanding that customers take PBT Tests in order to determine whether they were intoxicated. While the use of such 'breath tests' has become customary for instances involving drunken driving, the notion of actually entering a tavern or restaurant and asking a customer to blow such a test was unprecedented. Moreover, it brought to the forefront issues of personal security and the fundamental right guaranteed under our Constitution to be free of invasive searches. At one establishment, State Police allegedly conducted such a test upon a customer that between 12:30 to 4:00 PM had consumed four beers, left his car in the parking lot, consumed one more beer between 8:00 and 9:30 PM and then went to another bar at 11:05 PM. Allegedly officers made this individual blow a PBT test and told the person if he refused he would be going to jail. Apart from the legal and economic implications of such tactics, the majority of owners in attendance were confused by such actions. In recent years increased penalties and lower levels that define legal intoxication have prompted the majority of tavern owners to train employees in techniques of alcohol management, or at a minimum, phone for a cab if a patron has consumed one drink too many. Moreover, given the need to balance public safety with the cultivation of viable business and entertainment outlets in Saginaw County, this new approach of 'selective enforcement' came as a shocker to licensees as well as patrons. "It's hard enough making a go of business with the current economy and liquor laws," commented one owner. "Are they trying to frighten and chase away all of our customers? If so they might as well pull the plug and turn out the lights on every entertainment district and establishment in Saginaw County." As a publication that owes its very existence to the considerable support of entertainment & tavern owners throughout Saginaw County, this was serious business also affecting the viability of The Review. Indeed, in the weeks following this meeting rumors spread of random PBT tests happening at several establishments throughout Saginaw County. But were the rumors true and if so were the tests legal? What follows are answers to these questions. Part II: Separating Truth From Urban Legend The Alcohol Tactical Unit is essentially a pilot program started by The Saginaw County Sheriff Department and the Michigan State Police in answer to an increase in traffic fatalities last year that claimed 34 lives, half of those which were identified as 'alcohol related'. While no extra funding for this unit is allowed by the State of Michigan, coupled with budgetary cutbacks at both the State and County levels of government, the two agencies decided to team up insofar as they did not have the manpower to address this issue separately. "Basically, we have one officer from the state and one officer from the Sheriff department work out of a State car one night and a Sheriff vehicle the other," explains Saginaw County Sheriff Charles Brown. According to Brown, the Alcohol Task Force has four basic objectives. "First we wish to reduce the number of OUIL incidents; secondly we want to review LCC establishments that have a record of incidents and problems; third we look to work with the media & bars in putting out a 'safe driving' type of foundation; and finally we conduct seminars within classrooms and schools teaching children about the problems associated with drinking and driving. Thus far we've pretty much met each of those objectives," states Brown. When I mentioned to Sheriff Brown the concerns brought up at the Michigan License Beverage Association meeting, his immediate reply was, "I wish they would have invited me because I could have put a lot of those concerns to rest." "Our Task Force is not administering 'on-premises' PBT tests," asserts Brown emphatically. "The State Police have conducted one or two such tests and I am aware that there are four bars within Saginaw County that have had liquor control violations and PBT's conducted in conjunction with violations only, but none of these tests are done at random." "The only time a PBT can be used inside a bar is to test a proprietor or employee that is suspected of intoxication while working and serving alcohol to the general public, or a minor that is suspected of being intoxicated, based upon the 'Zero Tolerance' law," continues Brown. "These on-premises tests became a major issue because word spread that the tests were being conducted at random. The PBT controversy that I saw became blown way out of proportion. We are not walking into every bar in Saginaw County and doing this at random. That notion is totally a misnomer." "We've had numerous calls from people saying this or that bar has been randomly tested on premises, but 90 percent of what I've been called about is totally false and the stuff of 'urban legend'," asserts Brown. "I see both sides of the issue," continues Brown. "If a person is not intoxicated and asked to take a test inside a bar there is the potential for abuse. And the bottom line is that since starting this initiative we've had one fatal accident involving alcohol with a 17-year old minor that was coming from a residence and did not involve any bars or restaurants." "Our initiative is not to crack down on bars & restaurants acting responsibly. But when we have 17 people killed in drunk driving accidents over the course of a year, I compare it to a serial killer. If it was a serial killer that was doing this people would be beating my door down asking why we weren't doing anything." "Our intent is to work with all the tavern & restaurant owners so that we have safe people driving on the road. It's frustrating when I go into a home and have to tell a woman that her husband was killed that night." Part III: What Is Legal Within the Boundaries of the Law According to MLBA attorney Mike Brown, administering a PBT test inside a tavern or restaurant absent consent and a search warrant is generally believed to be illegal. "It is a very fine line the police are treading," states Brown. In a similar vein, Saginaw attorney William Street has a long and valued reputation in the arena of Civil Rights and Constitutional Law, handling many such cases on behalf of the American Civil Liberties Union. "Using PBT tests on non-drivers has a similarity to a case I currently have with one huge difference," he notes. "With the case I am involved in the PBT was administered for the purpose of ticketing a tavern owner, but in that incident it involves State police officers at a certain post that had it in for a particular licensee for political reasons." Indeed, two years ago a case in Pontiac involved the State Police 'targeting' a tavern owner and eventually putting him out of business. The owner sued the County in Federal Court on the basis of harassment and won a $750,000 judgement against the police officers in question. But according to Bill Street, the bottom line is that PBT tests can be legitimately used within an establishment in only two instances. "If an officer walks into an establishment and asks an individual under 21 to take an on-premises PBT test, that is probably legal once it is established the person is under 21 and there is reason to believe that person is being served alcohol, states Street. "They can validly use a PBT test with the Zero Tolerance Law for purposes of determining if a minor is in possession. However, the ACLU is in the process of challenging the Zero Tolerance Law with a test case in Federal Court because of the way the statute is worded in Michigan." "The way it is currently worded it can be enforced on groups of people without individualized suspicion. With the 'test case' that will soon be filed, an individual was in a group that was served alcohol and asked to take a PBT test, however that person was not intoxicated." "In order to get standing for a declaratory judgement on a particular law you need at least one aggrieved party," explains Street. "With the test case soon to be filed the party was in a group situation when he was confronted and ordered to blow into a tube and the test came out .00. This was a totally innocent person being forced to go through this procedure simply because he was in a group of people. You know, Johnny over here may be drinking underage and now we want everyone in the room to take a test. That is preposterous because at High School graduation parties it happens all the time. It is the legitimately innocent person who is subjected to the intrusion." "This case will be important because it goes to the core of what is reasonable," states Street. "The question is can you seize a breath sample without individualized suspicion that you committed a crime." "I would say that it would be preposterous for an officer to arrest a customer sitting in a bar drinking for simply not blowing a PBT test," asserts Street. "I mean what is the arrest being made for? What is the crime? If a person is under 21, though, they can be given the test and a citation as the law currently stands." In terms of 'bottom line' advice on what an individual should do if they are having a drink at a tavern and asked to blow a PBT test, Street says they should "simply refuse." "It is the customer who is having their individual rights violated, but the tavern owner who pays the penalty if there is a liquor control violation. In the case I am involved in, my client made up signs that stated: 'Know Your Rights. You have the right to refuse a PBT test if one is offered on these premises. If you take one, you will be barred from this establishment." "That was his response to these tests," states Street, "because if patrons refuse to be tested it doesn't generate any evidence and there is nothing that can be attached to a tavern. It's kind of a weird home remedy he came up with and wound up on the front of the Huron Daily newspaper." "I would say that if on-site PBT tests are now being used in any form of publicly funded manner and become institutionalized, any incident arising from it would be ripe for a good test case," notes Street. "The bottom line, however, is that if asked to blow an on-site PBT and not a minor, a person should politely refuse. If an officer says they must blow the test or be arrested, a person should ask, 'Arrest me for what?" "Public intoxication used to be a crime in Michigan and the Michigan legislature specifically repealed that criminal law," adds Street. "Now, for instance, you cannot arrest a person simply for being intoxicated on a street corner. If you see a guy passed out on the street it used to be that he would sober up in the County jail. Now they take you to either a hospital or a mental institution because simple public intoxication has been decriminalized. If you are drunk & disorderly, yes they can get you for that. But the mere act of being over .10 and walking down the street is not illegal." What about the argument of 'selective enforcement? If police at the County and State level are looking at cutbacks, isn't visible intoxication something that all officers should be looking for? Moreover, the moment they 'target' officers to do nothing but look for intoxicated individuals, doesn't that violate the Constitution in terms of 'selective prosecution'? "I don't know where legally that gets the police in any trouble," answer Street. "This is because a lot of specialization goes on within police ranks. You have narcotics officers and special teams dealing with auto theft, or chasing down stolen firearms, or handling outstanding warrants. There is nothing wrong with designating an officer to look for erratic drivers. The law says that police can do selective prosecutions unless it is motivated by something like a racial classification. If it involved a matter of discrimination on the grounds of race or age, arguably that would be illegal." "Honestly, the best way to tackle this currently is for the Michigan License Beverage Association to make up generic warning signs stating: You must be 21 to drink here. If you are offered a PBT test on this premises refuse. If you take one here your business is no longer appreciated and you will be barred." "Unless you are an operator of an automobile, watercraft or under 21 and suspected of drinking, or on probation, parole or bond with a condition of your probation stating that you must stay out of taverns, there is no way they can legally make you take this test in a tavern." Something that people may also not be aware of is that PBT tests are scientifically unreliable and not admissible in a drunken driving case. "In fact if you took a PBT and regardless of what you blew, it would never see the light of day in front of a jury," states Street. "A PBT test is merely a diagnostic tool to decide if you'll be arrested. Once you are arrested they do DataMaster tests under a certified operator in the County Jail with controls on it that are scientifically calibrated and backed up by reports from the operator." Saginaw attorney Mark Russo proposes an even more intriguing method of tackling this type of PBT testing. "Police are using this 'visibly impaired' argument for going into establishments. The legal standard for being intoxicated is .10, however there is this new section relating to visibly impaired that places the level at .07 and there is nothing 'visible' about it because they are presuming that a person is intoxicated at that level." "I would say a lawsuit against the State of Michigan needs to be filed in Federal Court challenging this very notion of 'visibly impaired', simply because many people can have 1.0 percent alcohol in their bloodstream or less and not appear to be impaired in the least. How can you penalize a tavern owner or arrest a person based solely on this presumption that they are intoxicated?" For purposes of clarification, attorney Bill Street offers a historical perspective. "The inclusion of the term 'visually impaired in the Dramshop Act was language inserted into that Act at the request of tavern owners and insurance carriers getting nailed with huge judgments under the old Dramshop Law," explains Street. "Prior to that law if alcohol was sold to somebody intoxicated and they went out and committed a crime they could sue not only the drunk but also the tavern owner or whatever 'pocket' of insurance existed and become liable as an innocent third party. Finally, after lots of civil liability cases, the tavern owners got the Michigan Legislature to insert the work 'visibly intoxicated' into the Act to make is slightly more difficult to sue." "The .07 lower level is part of MADD (Mothers Against Drunk Drivers) lobbying," notes Street. "This was done as a political agenda whereby they looked at the standard in Michigan and made a policy judgement to go with it. However, Street concurs with Russo in one important respect. "You can still make the same argument about the language. So what if a guy blew 1.5 as a passenger in a car after he left the tavern? How does that prove he was visibly impaired at the time of the sale when he may have been tested one or two hours later?" Part IV: Follow the Money Considering that tavern & restaurant owners are in agreement with law enforcement that responsible drinking is a standard to strive for, could there be another reason besides the 17 fatalities last year for prompting this type of alcohol enforcement? Given the fact that budgetary woes have prompted reductions in officers at both the State and County level, The Review did some research into the amount of money that is realized at the County level from DUIL related infractions. According to Mike Thompson from the Saginaw County Controllers office, some fines have gone down in the past year along with the number of tickets issued. "Whether this is because there are fewer officers on the road, I can't tell you," he notes. "We don't break things out in terms of DUIL related infractions, but I can tell you that $725,000 was collected last year countywide for all local ordinance violations and fines. When you add court costs that were assessed, the figure goes up to $1,010,000. But as I say, we don't track everything as separate items, so I cannot tell you how much of that was DUIL related." However, as anybody that works at the County Court House can tell you, most District Court Judges in Saginaw County spend 70% or more of their time on matters involving drunken driving. An interesting paradox to all of this is that years ago The State of Michigan factored a 17% revenue kickback to law enforcement through the liquor tax on each beverage sold. This is money collected through the liquor tax that goes back to State and County law enforcement units. Therefore, if law enforcement doesn't wish to witness further cutbacks, the last thing they should be doing is biting the hand of licensees that feed them. Part V: Thoughts & Conclusions Nobody is arguing that responsibility and safety is important with regards to enjoying oneself in a tavern or club. Moreover, all the owners we spoke to were in agreement that the added training for staff offered in Brown's plan was a welcomed solution. But they also point out that there is only so much a person can do and that a very fine line exists between public safety and public harassment. As one owner notes: "It is regrettable that 17 people died last year from drunk driving, but how many people also died from talking on cell phones and not paying attention to what they were doing?" "If somebody goes to a pharmacy and buys a prophylactic and it breaks on them and a girl gets pregnant, does that make the pharmacist liable?" In summation, it is important to remember that this is still a free country and that freedom carries responsibility on all sides of the fence. Tavern owners have a responsibility not to serve people visibly intoxicated, patrons have a responsibility not to get overly intoxicated, and the police have a responsibility not to instill blanket fear into people that they will be penalized or harassed for their methods of relaxation. According to Sheriff Brown random PBT tests are not being conducted. Moreover, people should not be intimidated or frightened to go out and support the talent and establishments that make our community such a great place to live. So know your rights, support the talent and versatility that makes our community significant, and live your life. This is as it should be.
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