Breath Test Results Not Admissible in Many Kent County DUI Cases!

If you get caught driving drunk in Kent County Michigan the police officer will ask you for a breath blood or urine sample. Most of the time the officer will pick breath, and the breath test device used in Michigan DUI enforcement is called the DMT Datamaster. The breath alcohol level reported by the DMT is an estimate of the amount of alcohol in your body. The majority of the State’s DMTs are maintained by the Michigan State Police.

A recent letter in a Kent County DUI case indicates as follows:

Due to what has been described to us as a “scheduling error”, none of the accuracy check tests between April 1 and May 2 were recorded into the Accuracy Check Log at the department.  Therefore, there are no accuracy logs regarding the DMT instruments at the Sheriff’s Department during this period, and the Kent County Sheriff’s Department will not be able to have anyone testify in court to the results of these accuracy checks for this time frame.

This letter is just one in a series of letters regarding fraud in Michigan’s breath test program.  Overseen by the Michigan State Police this fraud lead to attention grabbing headlines in recent months. The fraud was related to falsified records and other issues that arose during what is known as the 120-day calibration check. Michigan’s breath testing administrative rules require that a Class IV Certified Operator check the internal and external maintenance of the machine at least every 120 days.  Once the fraud was uncovered by a DUI defense attorney issue the MSP took every Datamaster out-of-service for a period of time. These units have since been put back into service.

In response to these series deficiencies, Mark Fondren, Technical Leader of the MSP Breath Testing Program, has indicated that their failures in policing their 120-day technicians impact the accuracy and/or reliability of breath test results.  The Michigan DUI attorneys at the Barone Defense Firm believe that this is simply a cover-up, and that this fraud means all breath tests taken in the last 18 months more are unreliable as evidence of intoxication in a DUI case.

What Are Weekly Accuracy Checks?

The Weekly Accuracy Checks, which are required under the Michigan Administrative Rules for Breath Testing, are automated gas simulations of a theoretical breath test.  Every machine across the State is programmed to run an automated test at 4:00 am every Monday morning and produce a printed result.  The result must be within 5% of the target number.  The target number varies depending on several atmospheric and topographical factors but is essentially designed to be a 0.08.  Under the law, these result print-outs known as OD-80s are to be collected and stored as evidence, and these results are also to be hand recorded onto a form known as OD-33’s to also be stored as evidence. This is all very important evidence in an alleged drunk driving charge. They are records that would or could support that the machine was providing acceptable results.  The Kent County Prosecuting Attorney’s letter referenced above indicates that from April 1, 2020 until May 2, 2020 there are no recorded accuracy logs, which means no OD-80s and no OD-33s.

What If There Are No Accuracy Logs for my Kent County DUI Case?

To be admissible in a Kent Count DUI trial a breath test result must be both relevant and reliable.  A breath test result is certainly relevant. To be reliable however, the prosecutor must produce evidence that the breath test instrument used to test the driver’s breath was in good-working order.  In this regard, the administrative rules require evidence not only that the 120-day checks were done property, but also that the weekly accuracy checks are all in proper order. In DUI trials where breath test results are questioned, judges throughout Michigan will often default to a legal principle or phrase known as “it goes to weight versus admissibility.” This means that in a DUI trial, a breath test result can be presented to a jury and it will be up to them to determine what meaning to give the evidence.

In these cases the Michigan DUI lawyers at the Barone Defense Firm often argue that failure to follow the rules compromises the reliability of the reported breath alcohol content.  However, in a situation like here in Kent County, when an entire month is missing, it would be legally prudent to suppress all Datamaster breath test results during this time period. Even tests conducted before and after this time period are ripe for suppression. This is because the breath test results are crucial for not only the defense of the case but the integrity of our system of checks and balances.

Will my Kent County DUI Case be Dismissed if Breath Test Not Admissible as Evidence?

Possibly. Michigan’s drunk driving laws provide for two separate but related legal theories of intoxication.  One legal theory is Unlawful Blood Alcohol Level, or what we call UBAL or per se, which is that regardless of the driving observed or the ability to operate a person may not be in operation of a vehicle with a BAC of .08 or more, or .17 or more for a high BAC charge.  This legal theory requires an admissible blood alcohol level.  If there is no breath test, there is no per se charge.  However, in a Kent County DUI trial a prosecutor can proceed on a case under a different theory of Operating Under the Influence, known as OUIL.  This theory argues that due to the consumption of alcohol (regardless of a reported amount) that a driver’s ability to operate was materially and substantially affected.

If you have a case in Kent County, or anywhere in the State, contact the team at the Barone Defense Firm to have your case extensively investigated and your rights protected.  We are here to ensure the checks and balances tip the scale in your favor.

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