The second title for this article should be “People of the City of Troy v. Emran Chowdhury Revisited.” The Michigan Court of Appeals issues an opinion on September 10, 2009 that would change the MIP law and defenses available to minors. However, it seems that the Michigan Legislature, despite amendments that were made after Chowdhury, continues to have an unconstitutional law on the books.

The Federal court in Spencer v. Bay City and Platte v. Thomas Twp, held substantially similar ordinances unconstitutional. The cases, as well as Chowdhury examined the following section of the ordinances as well as MCL 436.1703 (6):

A peace officer who has reasonable cause to believe a minor has consumed alcoholic liquor or has any bodily alcohol content may require that person to submit to a preliminary chemical breath analysis. A peace officer may arrest a person based in whole or in part upon the results of a preliminary chemical breath analysis. The results of a preliminary chemical breath analysis or other acceptable blood alcohol test are admissible in a criminal prosecution to determine whether the minor has consumed or possessed alcoholic liquor or had any bodily alcohol content.  A minor who refuses to submit to a preliminary chemical breath test analysis as required in this subsection is responsible for a state civil infraction and may be ordered to pay a civil fine of not more than $100.

All of these courts have determined that this section of the MIP statute is overbroad and unconstitutional as it gives peace officers the authority to violate the Fourth Amendment prohibition against unlawful search and seizure. After this case, most district courts no longer charged the civil infraction and many bench books would reference Chowdhury stating the law had been declared unconstitutional. So the Michigan Legislature, made up of many lawyers, immediately made the proper changes to the statute, right? Wrong!  The current statute, even after amendments were made to add medical amnesty, still has the language giving peace officers the right to violate the Fourth Amendment.

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