Articles Posted in Breath Testing

Michigan’s Super Drunk Driving law went into effect on October 31, 2010.  It created enhanced punitive and driver license sanctions for Michigan drunk drivers with a Bodily Alcohol Content (BAC) of .17 or above. It only applies to first offense drunk driving as penalties and driver license sanctions for second or subsequent offenses remain unchanged and more punitive than for super drunk driving. This is true even for repeat offenders with BACs at or above .17.

What are the Penalties for a High BAC Super Drunk Driving in Michigan?

Michigan drivers found or pleading guilty to a High BAC super drunk driving face an array of serious punishments and consequences, including potentially more time in jail and less time on the road.

In January 2020 it came to light that employees of Intoximeters, the company retained by the Michigan State Police to maintain all the alcohol breath testing devices used in Michigan’s DUI investigations, had committed fraud. This fraud included the falsification of the documentation necessary to confirm that the breath test units were working properly.  Much has happened and been learned about the fraud in the ensuing 12 months, and this has culminated in the recent filing of a complaint in the Federal District Court for the Eastern District of Michigan by the Marko Law Firm.  The Firm’s Federal Complaint alleging Fraud was filed January 26, 2021.

Lawsuit Background

The device used to test a driver’s breath in every drunk driving investigation involving breath evidence in Michigan is called the DataMaster DMT. In 2006 Michigan purchased approximately 160 of these devices and paid about $6,000.00 per unit.  These devices were intended to replace the aging DataMasters then in use around the state.

If you were arrested for DUI in Michigan, then you were likely given either a breath or blood test. The purpose of this test is to determine if you had a bodily alcohol level at or above Michigan’s legal limit of .08. Because a breath test above the legal limit is all the prosecutor needs to prove your guilt, a successful trial defense requires a successful breath test defense.

Many lawyers see DUI cases with breath tests as not defensible. While there is little question that juries tend to give breath test results a great deal of “weight” in deciding their verdicts, all breath test cases are defensible at trial. For example, the Michigan DUI lawyers at the Barone Defense Firm have successfully used all eleven of the following defenses:

  1. Breath Test Operator Mistakes – the typical DUI officer in Michigan has only attended a single one-day course after which they become certified class II operators of the breath test machine, in Michigan called the DataMaster DMT. Only a couple hours of this one-day training actually covers the administration of the breath test. The rest of the training relates to things like how the machine works, how to fill out paperwork and other related administrative tasks and functions. There is a written test given after the training, and officers only need to score a 70% to pass.  If they don’t pass a second time, they can retake the training, after which they get two more tries. Basically, this means everyone passes. Making matters worse, after this “training” there is almost no oversight in the field to confirm that the officer is properly administering the test, and the training does not include a practicum. Because the training is so inadequate, officers often make mistakes in administering the breath test, mistakes they may be totally unaware they are making. Some of these mistakes can lead to false and unreliable test results. These mistakes can be uncovered through a careful review of the breath test being administered and/or through cross-examination at trial.

According to science, breath alcohol tests in DUI cases can be as much as 230 percent higher than corresponding blood tests. Because blood transports consumed beverage alcohol from the stomach to the brain where it can reach sufficient levels to cause impairment, a person’s blood alcohol level is what really matters. Therefore, in the context of a DUI case, breath alcohol only relevant  to the extent that it accurately reflects blood alcohol content. This is true because breath alcohol does not have the capacity to cause intoxication.

To understand just how significant this fact is, consider a hypothetical case where a driver’s breath test comes back at .18. This would likely result in the driver being charged with an enhanced DUI, or what Michigan calls “super drunk driving,” a charge applicable to drivers with a BAC of .17 or above. While this breath test evidence might look bad for the driver, it is well within the realm of scientific possibility that this same driver has corresponding or simultaneous blood alcohol level of .063, or well below the legal limit of .08. Understanding why this is so, and why breath testing can be so pernicious, requires a basic understanding of alcohol metabolism.

Pharmacokinetics and the Absorption, Distribution and Elimination of Alcohol

It is with sadness and a heavy heart that the Barone Defense Firm announces that on July 24, 2020, Mr. John Fusco, died at his home in Ohio.  He was 77 years old.

John was the CEO and owner of National Patent Analytic Systems (NPAS) in Mansfield Ohio. John was a pilot and had a deep passion for flying. Under his leadership NPAS, located adjacent to an airstrip, successfully procured contracts to manufacture and test aircraft parts for the US Government and others. Also, in 1986 NPAS acquired an early version of the breath test instrument that became the NPAS DataMaster.  Subsequently, NPAS continued to refine and improve the DataMaster and created several different iterations of the device, culminating in the DataMaster DMT, widely considered the best alcohol breath testing instrument available. Michigan and several other states use the DataMaster DMT exclusively for law enforcement purposes, including drunk driving arrests.

img_2114_14212559533_o-300x217

Dave Radomski, Patrick Barone, John Fusco

All drivers arrested for DUI in Michigan will have their breath tested by a breath testing instrument called the DataMaster DMT. The evidence produced by this breath test device will become crucial evidence in their subsequent drunk driving charge, so it is essential that the breath test results produced be accurate, precise and reliable. The Michigan State Police are charged with the responsibility of maintaining these breath testing instruments so as to assure their accuracy, and it was recently discovered that MSP’s quality assurance program was marred by fraud.

Important Background Information Regarding Fraud in Michigan’s Alcohol Breath Testing Program

National Patent Analytic Systems (NPAS), a corporation headquartered in Mansfield Ohio, is the manufacturer of the infrared evidentiary breath testing instrument known as the DataMaster.  These instruments began with the introduction of the BAC Verifier in 1981. The DataMaster predecessor was the BAC Verifier, which was originally manufactured by Verax  Systems, Inc. of Fairport, New York. Verax sold the rights to the BAC Verifier to National Patent Analytical Systems (NPAS), who then moved their business, including the actual manufacturing processes, to Mansfield, Ohio.

Michigan’s Attorney General Dana Nessel recently announced that two technicians, formerly responsible for the maintenance and calibration of hundreds of breath testing devices used throughout Michigan, have been charged with multiple felony counts for allegedly falsifying records.  Their names are Andrew Clark and David John.

Mr. Clark and Mr. John were both “Class IV” operators of the DMT. Class IV is the highest of the four operator classes, and this level of certification allows the operator to perform 120-day inspections. During the 120-inspection the operator checks for linearity and if problems arise, it is possible for the inspector to re-calibrate the DMT. If done improperly, this could result in inaccurate breath test results, wrongful DUI arrests and wrongful DUI convictions. The criminal cases against them allege that Mr. Clark and Mr. John committed forgery in producing false documents indicating, among other things, that they had performed 120-day inspections when none had occurred.

The breath test device used to test drivers arrested for DUI in Michigan is called the DataMaster DMT. Michigan currently has more than 200 DMTs in service, and all of them are serviced by 3 technicians. The State was essentially divided in half north to south, creating an Eastern and Western side each of which was handled by a separate technician.  The northern part of the State, including the upper peninsula, was handled by a third operator.

The breath test is the most common chemical test given to drivers in Michigan arrested for DUI. The device used by police throughout the State is the DataMaster DMT.  Like all breath testing devices, this instrument uses infrared spectroscopy to measure the amount of beverage alcohol in a driver’s breath.  To assure accuracy, however, like all measuring instruments, the DMT must be properly calibrated and maintained.  Otherwise, drivers can be wrongfully accused of driving drunk, and worse than that, wrongfully convicted of drunk driving.

To assure this breath test accuracy, the Michigan State Police, who are charged with the responsibility of maintaining nearly all of the State’s DMTs, has promulgated administrative rules for breath testing.  These rules provide that each DMT must undergo a weekly “dry gas” calibration check. These dry gas calibration checks are run automatically.  In addition to this, every 120-days a Class IV operator must inspect the device. During this 120-day inspection necessary repairs can be made, and the breath testing device can be re-calibrated.

The 120-day Inspections

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.

Almost since the uniform adoption of the automobile in the early 20th Century, drunk driving has been a vexing problem. After World War II, as the population began to move to the suburbs and the two-car garage become standard, instances of drunk driving increased. A couple decades later, Mothers Against Drunk Driving become one of the strongest, most influential, and most successful political action committees in all the land. Most recently, MADD has begun to champion Breath Alcohol Interlock Devices, or BAIIDs, as the panacea needed to end drunk driving.

History of HR 3011 Proposing to End DUI by 2024

There have been multiple attempts by both parties in the federal government to pass legislation that would require the mandatory use of BAIIDs. The most recent incarnation of these efforts manifests in a bill that would require BAIIDs in motor vehicles by 2024. Prefaced with the desire to “[T]o improve the safety of individuals by taking measures to end drunk driving”, H.R. 3011 is sponsored by Rep. Kathleen Rice, a Democrat from NY and supported by Senators Tom Udall (D-New Mexico) and Rick Scott (R-Florida) and Representative Debbie Dingell (D-Michigan). The Bill, originally submitted in 2019, seeks to force automotive manufacturers to install systems that would prevent a vehicle from being started if the driver was above a .08.  These bills represent the latest attempts to force untested and unreliable equipment into our motor vehicles, with little regard for the severe consequences that could potentially follow.

Contact Information