Sobriety checkpoints are unconstitutional in Michigan, the state that lost the federal case

Article I, section 11 of the Michigan Constitution of 1963 secures the person, houses, papers, possessions, electronic data and electronic communications of every person from unreasonable searches and seizures, and forbids a warrant to search any place or to seize any person or things without describing them and without probable cause supported by oath or affirmation. The Michigan Supreme Court has rarely read that clause as giving more protection than the Fourth Amendment, but the checkpoint question is the exception it is best known for. A concurring opinion by Justice Welch in People v Duff, Michigan Supreme Court Docket No. 163961, decided July 26, 2024, restates the position: despite the general reluctance to diverge, in Sitz v Dep't of State Police, 443 Mich 744, 764 to 779; 506 NW2d 209 (1993), the Court held that warrantless, suspicionless sobriety checkpoints on Michigan highways violated Const 1963, art 1, section 11, after the same checkpoints were deemed lawful under the Fourth Amendment in the same case by the United States Supreme Court.

The section carries an oddity worth knowing. Its final sentence says the section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon seized by a peace officer outside the curtilage of any dwelling house in this state. The Legislature prints an annotation with the section recording that this last sentence was held invalid as in conflict with the Fourth Amendment, citing People v Pennington, 383 Mich 611; 178 NW2d 471 (1970) and Lucas v People, 420 F2d 259 (CA 6, 1970), among others. The section was last amended by Senate Joint Resolution G, approved by the voters on November 3, 2020 and effective December 19, 2020, which added electronic data and electronic communications.

Because there is no checkpoint authority, every Michigan impaired driving stop has to rest on individualised grounds. MCL 257.625a(2) lets a peace officer require a preliminary chemical breath analysis only where the officer has reasonable cause to believe that the person was operating a vehicle on a public highway or other place open to the public or generally accessible to motor vehicles, including a parking area, and that consumption of alcoholic liquor, a controlled substance or another intoxicating substance may have affected the person's ability to operate. Lower thresholds apply to two groups: a commercial driver with any measurable amount, and a driver under 21 with any bodily alcohol content as defined in MCL 257.625(6). An officer may arrest based in whole or in part on the PBT result.

MCL 257.625a(1) sets out the only two warrantless arrest situations spelled out in the section, and both are individualised rather than programmatic. The first is where the officer has reasonable cause to believe the person was the operator of a vehicle involved in an accident in Michigan and was operating in violation of MCL 257.625. The second is where the person is found in the driver's seat of a vehicle parked or stopped on a highway or street with any part of the vehicle intruding into the roadway, and the officer has reasonable cause to believe the person was operating in violation of section 625.

What Michigan does instead is high visibility patrol. The Office of Highway Safety Planning, a division of the Michigan State Police, administers the Drive Sober or Get Pulled Over campaign with federal traffic safety funds from the National Highway Traffic Safety Administration, pairing extra patrols by MSP and local agencies with paid media. OHSP notes that while the offence threshold is a blood alcohol concentration of 0.08 or higher, a driver can be arrested at any BAC level if an officer believes they are impaired, and that a driver with any amount of a Schedule 1 controlled substance or cocaine faces the same fines and penalties even without signs of impairment, with the single exception of a valid medical marijuana card holder, where the officer must show impairment due to the cannabis.

There is no Michigan offence of avoiding a sobriety checkpoint, because there are no lawful sobriety checkpoints to avoid. If a Michigan agency did stop you at a suspicionless roadblock, the remedy is a motion to suppress in the district or circuit court handling the charge, arguing that the stop was a seizure without individualised suspicion contrary to Const 1963, art I, section 11 under Sitz. 625a(2)(d) for an ordinary driver. 319d. 625c, 625d, 625e and 625f. 625c(1) for defined purposes, including assisting the court or a hearing officer in deciding a challenge to the validity of an arrest.