Articles Posted in DUI Mistakes

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

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.

Prosecutors Stop Using Results from Improperly Calibrated Breath Test Machines

Prosecutors across the state of Massachusetts have stopped using breath test results obtained during drunk driving arrests for tens of thousands of motorists between 2011 and 2017.  The reason is that defense attorneys representing the drivers discovered that breath test machines throughout the state were improperly calibrated.  If was further discovered that state officials tried to hide this fact from both prosecutors as well as defense attorneys.  During the litigation defense attorneys representing the alleged drunk drivers learned that the Massachusetts State Police Breath Testing Unit had withheld hundreds of documents showing a far higher calibration failure rate than had been reported.  These documents were withheld even after they had been ordered by a judge.

Breath test and computer forensics expert Thomas Workman was involved in the case and was instrumental in helping the defense attorneys uncover the fraud, which included withholding several hundred calibration worksheets the police kept documenting their work.  These calibration sheets collectively showed an unreasonably high calibration failure rate.  Mr. Workman also determined that the calibration protocol the State Police claimed to operate under did not exist. Because of this ongoing litigation, an agreement was reached whereby older breath test results will no longer be used as evidence.  Cases where an accused has already been convicted may pursue an appeal, but only if they can show that their plea or conviction was based only on the breath test, and not on other evidence, such as failed field sobriety tests or erratic driving.  For more information, see “Tainted breathalyzer results could force new trials” Salem News, August 16, 2018.

Although this litigation transpired in Massachusetts and involved a Draeger 9510 breath test machine, this does not mean that it has no relevance in Michigan.  Like Massachusetts, Michigan also has no calibration protocol. There are administrative rules covering calibration checks, which must be performed once per calendar week.  This rule, which can be found at Tests for Breath Alcohol Admin R. R 325.2653, which reads in part as follows: [A]n appropriate class operator who has been certified in accordance with R 325.2658 shall verify an evidential breath alcohol test instrument for accuracy at least once each calendar week, or more frequently as the department may require.  Notice the word “calibration” does not appear here.  A second paragraph from this administrative rule also indicates that Michigan’s breath test machines “shall be inspected, verified for accuracy, and certified as to their proper working order within 120 days of the previous inspection by either an appropriate class operator who has been certified in accordance with R 325.2658 or a manufacturer-trained representative approved by the department.” While calibration can be performed as part of this 120-day inspection, again, the word “calibration” does not appear within this administrative rule.  In fact, the only place the word “calibrate” appears within the whole of the administrative rules is in Table One of Tests for Breath Alcohol Admin R. 325.2658, wherein it indicates that only Class VIB operators can calibrate evidential breath test machines.  There is, however, no description of how such calibration is to be effectuated. Worksheets from the 120-day inspections can be obtained through discovery, yet such worksheets also contain no information relative to the way such calibration was conducted.

Police Caught Falsifying More Than a Quarter Million Breath Tests

Victoria Police was caught falsifying more than a quarter million roadside breath tests over a five-year period.  The claim is that the officers did this to meet quotas or to highlight their productivity.  At the end of the month, when quotas had not been met, officers would set up ad-hoc roadblocks to test motorist’s breath or make as many traffic stops as possible.  Another option for police officers was to fake a series of tests.  They would do this one of three ways, either by blowing into the handheld roadside breath testing unit (PBT) themselves, holding the unit outside a window of a moving car, or even simply placing a finger or thumb over the inlet to “trick” the PBT into believing a breath sample was being received.  The claim is that none of the fake tests were involved in any drunk driving arrests and that the results of such fake tests were not used in court.

A spokesperson for the Victoria Police claimed that they do not set quotas for officers. They acknowledged however that local managers may set their own targets.  The police union claims all this faking occurred due to overly demanding workloads and expectations.  In some instances, police were expected to collect as many as 50 breath samples in a single shift.

The Independent Broad-based Anti-Corruption Commission (IBAC) had a part in uncovering this and other abuses with Victoria Police and expressed deep concern that Victoria Police had developed a culture where such abuses were not only commonplace but unofficially sanctioned.

Should I Refuse the Field Sobriety Tests?

If you are stopped and the police smell alcohol or marijuana, then there’s a good chance you will be asked to step out of the car to perform field sobriety tests. If you fail one or more of these tests, then you will probably be arrested for OWI, or Operating While Intoxicated.

Michigan has not made it unlawful to refuse field sobriety tests, and if you refuse them, then the police will not be able to use any poor performance against you at trial.  Your attorney might also argue that without field sobriety tests the police lacked probable cause to make a lawful arrest. If successful, your case could actually be dismissed.  So there is a real benefit to refusing the field sobriety tests.

On the other hand, the prosecutor might argue that you refused the tests because you knew you’d fail them.  This is sometimes called a “consciousness of guilt.” Much has been written about consciousness of guilt arguments, and some courts believe that these arguments violate due process.  For example, if you exercise your constitutional right to remain silent, this should not later be used against you.  However, other courts have held that so long as you are advised ahead of time that your refusal will be used against you, then there is no due process violation.

Assuming there is no defense: This mistake is number one for a reason, it is potentially the biggest mistake you can make.  EVERY DUI case can and should be defended.  It’s your Constitutional right.  A belief that your case can’t be defended can only lead to one result – guilty: and this is the very result you should be trying to avoid. Remember that it is unlikely that you will ever regret aggressively defending your case, but you certainly might regret not defending it!

If you’ve already retained an attorney, then your attorney should be talking to you about what defenses apply in your case. If your attorney is not doing this, then chances are pretty good that he/she simply doesn’t know how to defend your case. This lack of knowledge can be fatal to your case.

On the other hand, if you are interviewing possible attorneys to represent you, discuss with him/her what defenses apply in your case, and equally important, how likely these defenses are to meet with success. Select the attorney who seems to be the most knowledgeable and who has the most positive outlook and attitude. As you go through this selection process it’s best to always remember one thing, success can only happen when you believe in your attorney and your attorney believes in your case!

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