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NILES — Arguments were heard last week in the Michigan Court of Appeals in the case against a Buchanan man accused of driving drunk and killing a Berrien County Road Department worker nearly three years ago.

Taylor Ryan Johnson is charged with driving while intoxicated and causing the death of Berrien County Road Department worker William “Mack” Isom. The July 20, 2022 incident on Red Bud Trail in Oronoko Township took the life of Isom who was trimming tree branches in the roadway.

The preliminary breathalyzer test (PBT) administered after the accident showed Johnson with a blood alcohol level of over .19 which is more than twice the legal limit.

      The case has been delayed a number of times since the 2022 incident. It had been set to go to trial last June when defense attorney Jessica LaFond filed the most recent appeal. If convicted, Johnson faces a maximum penalty of 15 years in prison and a fine of up to $10.000.

Previously, Johnson’s attorneys had appealed a decision by Berrien County Trial Court Judge Jennifer Smith to exclude evidence about Isom’s alleged negligence and using it as a defense at trial. That decision was appealed to the Michigan Court of Appeals and later the Michigan Supreme Court and resulted in both courts denying to hear the appeal.

Last week’s arguments were held before a three-judge panel in Grand Rapids. The judges hearing the case were Presiding Judge Sima G. Patel, Judge Mark T. Boonstra and Judge Thomas C. Cameron.

The judges heard the arguments from LaFond and Michael Murphy representing the Berrien County Prosecutor’s Office. The judges did not give any indication as to when they will issue a ruling.

LaFond argued that the preliminary breath test results from that day should be suppressed because Johnson was not read his rights. Similarly, she said that a search of the “black box” in Johnson’s car was done illegally since the affidavit asking for the search warrant did not mention any alleged criminal activity.

      “A Fourth Amendment search under the federal and state constitutions requires a warrant,” she said. “The exception is consent. How normal drunk driving incidents go is that there is an accident or crash and the officer asks if they can do a preliminary breath test, they normally seek consent.”

      “This situation is different,” she added. “Officer (Martin) Kirk arrived on the scene and began the investigation. He talked to other officers and individuals. We have his bodycam. He said he doesn’t think he has enough evidence to make Mr. Johnson go to the hospital for a blood test.”

      “He has had him (Johnson) for 40 minutes by the time he asked for a test and was with him most of the time,” she said. “He (Johnson) was detained during this action in the back of a cruiser. He did a field sobriety test and told he was not free to go to the side of the road.”

      LaFond said where the problem occurred was that Johnson was not given a choice. She added that Johnson passed field sobriety tests and had no problem when asked to walk and turn and have a one legged stance.

“Kirk says that they don’t have anything to make him go to the hospital or take him in,” she said.

“They could have placed him under arrest and gotten a warrant for a chemical test,” she said. “My position is that they didn’t have probable cause … Because no warrant was secured, the search has to be presumed to be unreasonable. Consent was not even sought by the officers.”

      Murphy argued that there was evidence to do the preliminary breath test and said it wasn’t an illegal search.

“A preliminary breath test is primarily designed to help the officer make an on the scene decision to make an arrest,” he said.

      He said he was not conceding that there wasn’t probable course for the breath test and noted that Kirk said he continued to smell alcohol on Johnson although Johnson denied drinking. Murphy cited cases where officers smelled marijuana during a traffic stop which drivers denied using.

“That denial plus the smell were probable cause,” he said.

      “Reasonableness is the test,” he said. “A breath test is minimally intrusive. It’s no different than asking someone to blow up a balloon. They’re not asking him to go to the hospital, it’s less intrusive … There is a high societal interest in removing drunk drivers from the road.”

      Murphy also argued that if nothing else, the case should be remanded back to the trial court to hear testimony from Kirk about the incident and his actions. Kirk has never testified in any hearing to date.