Many times an MIP case can hinge on how effectively a defendant can relay information about the night in question to their attorney. There have been many instances where young people, who have been consuming alcohol, have told us they took a PBT test and even thought they knew their number. After diligent inquiry into the case and review the police report, it is determined that in fact they never took a PBT test and never even made any statements to the police about drinking.
In fact, the clients were adamant about not answering any questions and kept asking “why are we getting an MIP?” The first attorney retained completely missed this and had already started them on substance abuse evaluations (where the evaluator put in writing again that there were PBT results for alcohol). These assessments were of no use to us and could have severely jeopardized the case.
Instead, the case was ready to go to trial and the prosecuting attorney dismissed all charges against the two minor defendants. In addition, even if there HAD been PBT evidence obtained against them, we can go all the way back to a case mentioned earlier, People v. Rutledge, where the Michigan Court of Appeals ruled that simply having alcohol in your system is not evidence of possessing alcoholic liquor. They went on to say that use of the breath test as evidence to determine whether the statute was violated is both appropriate and permitted by statute. They went on to say, and most people missed this part of the ruling..”a positive Breathalyzer test for alcohol is not a violation per se of the minor in possession statute, though it is for the statute prohibiting a minor from driving under the influence of alcohol.
In English this means that, especially in light of the recent rulings regarding forced PBT tests, a defense attorney could argue that a prosecutor must actually prove that the minor INGESTED alcohol or actually physically possessed the alcohol in order to prove the case beyond a reasonable doubt.