Articles Posted in Breath Testing

Michigan drivers arrested or convicted of drunk driving might be ordered to have a Breath Alcohol Ignition Interlock Device (BAIID) installed on their car. Some judges will require a BAIID to be installed as a condition of bond.  Other times, a BAIID can be a condition of probation. With a high BAC case (test result at or above .17) a BAIID will be a condition of obtaining a license.  Repeat offenders suffering from license revocation will be required to have a BAIID installed as a condition of later obtaining driving privileges. Sobriety courts also use BAIIDs as part of their programs.

In each of these instances, a positive alcohol test on the BAIID will result in serious consequences, ranging anywhere from jail time to additional license sanctions.  A frequent question then is how does one avoid a false positive.  That is, if you have a BAIID on your car, how can you avoid having a false positive reported to the court?

The best and most obvious way to avoid a “false” positive is to not drink. Sometimes a person who is ordered to stop using alcohol, but who knows when they will be tested, tries to outsmart the system by drinking only a little and hoping that when they are testing, the alcohol will have left their body.  This idea is not only wrong; it’s doomed to fail.

Nearly all drunk driving arrests in Michigan consist of four parts; (1) some sort of bad driving leading to a traffic stop, (2) roadside or “field sobriety tests,” (3) roadside breath test for alcohol, or saliva test for drugs, and; (4) second breath or blood test to confirm roadside test.

Regarding roadside field sobriety testing, Michigan law has been moving toward requiring that field sobriety tests be administered according to the standardized protocol.  For example, prior Michigan cases have indicated that the Horizontal Gaze Nystagmus (HGN) must be administered properly and that the officer administering the test must be qualified to perform it. (Berger). Another Michigan drunk driving case indicates that an officer’s incorrect administration of the HGN test will lead to an inaccurate interpretation of the results. (Mullen).  So far, however, no published Michigan drunk driving case has defined “standardized field sobriety test” or required either strict or substantial compliance.

A newly amended Michigan drunk driving law changes that, at least temporarily.  This new law is part of the broader package of laws creating a pilot program pilot that aims to test the use of saliva testing to screen potential drugged drivers on the road side.[i]

A recent USA Today article describes two different technologies that promise to end the occurrence of drunk driving in Michigan within 5 to 8 years.  These include a breath monitoring system that does not require the driver to breathe into a tube, and a sort of fingerprint monitor that measures alcohol through the skin.

The first technology measures the breath of the driver by drawing it into a chamber that compares the amount of carbon dioxide in the breath to the amount of ethanol.  Once the ratio passes a certain point, the car won’t start.  According to the article the device uses infrared light to make the measurements, the same type of technology used to determine a driver’s bodily alcohol content through breath testing in a drunk driving case in Michigan.

Relative to this particular technology the article is silent relative to how the monitoring device “knows” that it is measuring the driver’s breath alcohol rather than a passenger’s breath alcohol.  The article also fails to address what will happen if the ration is below when the car starts but gets above as the car is being operated.  Will the car make the driver pull over and stop operating?  If so, then can a sober passenger take over?

I have written previously in this blog about the unreliability of retrograde extrapolation in drunk driving cases.

This is an important topic because state experts in drunk driving cases often will come into court and try to convince the jury that the driver’s blood alcohol at the time of the driving was higher than at the time of the test.

This practice is very common in OWI Causing Death cases because the blood evidence is usually several hours old.

The lynchpin of Michigan drunk driving prosecution is a reliable breath testing program.  Prosecutors have big problems when this reliability is legitimately called into question.

This is exactly what has happened recently in Texas where it is reported that between 1200 and 4000 breath tests were fraudulently verified.

According to the Houston Chronicle a Department of Public Safety contractor by the name of Deetrice Wallace fraudulently manipulated the state’s breath testing machines causing thousands of wrongful DUI convictions.  Instead of changing the reference sample every month as required Wallace instead falsified the tests and pocketed $146,000 in profit.

If you’ve been arrested in Michigan for drunk driving then there is an excellent chance that you were asked to take a breath test.  If that breath test result was above .08, then the state can use this as the only evidence needed to prove that you had an unlawful bodily alcohol level at the time you were driving.  (UBAL).  In other words, you can be convicted based only on this breath test evidence.

But what if the test was wrong?   A wrong breath test result can mean a wrongful conviction, and this was the major problem with cases from September 2009 to November 2010 in Philadelphia.  According to reports the police found the problem and notified defense attorneys.

Furthermore:

Any DUI lawyer who has handled more than a couple dozen Michigan drunk driving cases knows that it is important to know how much alcohol was consumed and how this amount of alcohol impacted his client’s blood-alcohol level at the time he or she was driving.

But the driver’s roadside breath test is inadmissible, so it is only the one at the station that counts, and this test is usually 45 minutes to several hours removed (later) from the driving.  Because of this, establishing blood alcohol calculations at a point earlier in time can be one of the most critical components in a drunk driving case. Such calculations involve the absorption, distribution and elimination of alcohol, or more broadly, the metabolism of alcohol.

These backwards-looking calculations are called retrograde extrapolation.  This topic has been covered previously in the following blogs:

If you were given a breath test after being arrested for drunk driving in Michigan, then it is important to have an attorney verify that the test was given properly.  This means verifying that all requirements were followed and adhered to.  A failure to do so can result in the test being thrown out of evidence.

An example of such a requirement is the 15 minute observation period.  If the police do not observe you continuously for 15 minutes prior to asking you to blow into the machine, then the test might be deemed invalid.

The police must also check your mouth before asking you to blow into the machine.  If they fail to do so and it can be show that something was in your mouth when you blew into the machine, then the test can be deemed invalid.

It is well known that the legal limit in Michigan is .08.  This means if the police breath, blood or urine test show that you are at or above .08, you can be convicted of DUI in Michigan – even if you are driving perfectly well!

It is not unlawful however, in Michigan or any other state, to drink and drive.  Drinking and driving becomes unlawful only if the prosecutor can show that the alcohol caused you to become impaired or intoxicated.

In order to drive safely, some people buy breath testing machines or breathalyzer apps to test their breath before they hit the road.  Trouble is, these apps can be wrong.  So wrong in fact, that they will say you are safe to drive when you’re really more than twice the legal limit.

How to Beat a DUI in Michigan

how to beat a DUI in Michigan, how to beat a breath test in MichiganIf you are facing drunk driving charges in Michigan, you might wonder if it is even possible to beat a DUI charge. The best defense attorneys know that the answer to this question is an enthusiastic yes!

Facing a DUI/OWI is never fun. The penalties can be severe, and include loss of driving privileges and even jail time. OWI charges are very hard to win, and if you’re serious about how to dismiss a DUI charge, then you’ll need to hire a top Michigan OWI Lawyer.

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