An Oakland County Circuit Court Judge recently suppressed a DataMaster .20 evidentiary breath test result on a felony drunk driving case. The judge suppressed the breath test because the police officer who administered the test failed to follow the laws and rules intended to assure that breath tests are reliable. Because of the judge’s ruling, the prosecutor can no longer argue to the jury that the driver had an unlawful bodily alcohol level (UBAL).
The facts, in this case, are as follows: the driver was stopped for making an unlawful turn. The driver had no valid driver license, smelled of alcohol and admitted drinking. Subsequently, the driver was unable to perform to the police officer’s satisfaction on the field sobriety tasks, including the alphabet, backward count, heel to toe and horizontal gaze nystagmus. This driver had two or more prior DUIs in his lifetime. Based on Heidi’s law, with at least two lifetime prior DUIs, this arrest would make it a felony. A roadside preliminary breath test indicated .123 on a “weak” sample. Thereafter the driver was arrested for felony drunk driving.
Because this was a felony case, the driver was entitled to a probable cause hearing. In Michigan, this is called an evidentiary hearing. At an evidentiary hearing, the prosecutor bears the burden of proof, but only by the standard of probable cause. This means prosecutor need only show, through witnesses and evidence, that the crime charged was probably committed. Because of this, an evidentiary hearing is a much-abbreviated version of trial. Nevertheless, at the evidentiary hearing, we did ask the police officer some general questions about his observation of the driver prior to the breath test. This was to set up a motion to suppress at the circuit court.