Challenging the Admissibility of the Breath or Blood Tests After A West Michigan Drunk Driving Arrest

A. Being Advised of Your Chemical Test Rights

If you are arrested for drunk driving in Michigan, Michigan’s Implied Consent law requires that you either submit to a “chemical” test, either a breath test or a blood test, or face a year-long suspension of your driving privileges and have six points added to your master driving record (you can ask the Circuit Court to for a restricted license during the one-year suspension pursuant to a “hardship” request). If you are not properly advised of your Chemical Rights, then the results of the test(s) may be suppressed. This is the form that is used here in Michigan:

Breath, Blood, Urine Test Report.

For example, one mistake that is sometimes made, and that we try and capitalize on whenever possible, is that, according to Michigan law, a person with diabetes, hemophilia, or who takes anticoagulants and is under the care of a physician for these conditions does not have to consent to a blood test, because it would be medically dangerous to do so and, therefore, constitute an unreasonable search under our Constitution. Another common mistake is for the police to arrest somebody for an offense other than drunk-driving, e.g., disorderly conduct, leaving the scene of property damage accident, MIP, etc., and then demand that you take a chemical test. If you are not arrested for drunk driving, the implied consent law does not apply and the results may be successfully attacked. The experienced attorneys at Springstead Bartish & Borgula Law will thoroughly other avenues to attack this “consent” search as well.

1. If You are Cited for Refusing to Submit to a Chemical Test

If you are cited for a refusal, you have 14 days to challenge this finding with the Secretary of State. You should receive the following form, the DI-93:

If you are cited for a refusal, you have 14 days to challenge this finding with the Secretary of State.   You should receive the following form, the DI-93 

At the hearing, the police officer will have to prove:

  1. The officer had probable cause to arrest you for drunk driving.
  2. You were actually arrested for drunk driving.
  3. You were properly advised of your chemical rights.
  4. You unreasonably refused to submit to a chemical test.

If the officer does not prove any of one of these four elements, then your suspension will be reversed and it may bode well for the results to be suppressed in your criminal case. This hearing also provides a good opportunity for an experienced drunk-driving attorney to question arresting officer, under oath, on the facts surrounding your case, possibly benefiting a legal challenge in the criminal case. We have won a few of these hearings where our clients asked to speak with an attorney before deciding whether to take the test and the police officer refused. Michigan case law holds that this is not an “unreasonable” refusal, but rather a reasonable one, especially when choosing between possibly incriminating oneself or losing your ability to drive. We have also won some of these hearings by default, if, for some reason, the officer does not appear.

If you are cited for refusal, be sure to contact an experienced West Michigan Drunk-Driving Defense Attorney to fully explore your legal options, as the stakes are high.

 

B. Challenging the Admissibility of the Results of a Breath Alcohol Test

Michigan law makes it a crime to operate a motor vehicle with a breath-alcohol content (B.A.C.) over the legal limit. In Michigan, there are three very specific legal thresholds that criminalize driving with certain B.A.C. levels:

  1. Zero Tolerance”—Michigan’s “Zero Tolerance” law makes it a crime (misdemeanor) for minors to operate a motor vehicle with a B.A.C. of .02% – .07%, unless it is the result of consuming alcohol during a religious ceremony or ritual.  See M.C.L. § 257.625(6).
  2. Operating While Intoxicated–Michigan law assumes that if your B.A.C. is .08% or greater that you are operating while intoxicated.
  3. Operating with a High-B.A.C. (a/k/a “Super Drunk”)—There are enhanced penalties for operating a motor vehicle with a  B.A.C. of .17% or more.

In Michigan, when the police seize a sample of the accused’s breath, the police typically use the “new” DataMaster DMT to measure or estimate how much alcohol is in the breath sample provided. Here is a photo of the DMT:

In Michigan, when the police seize a sample of the accused’s breath, the police typically use the “new” DataMaster DMT to measure or estimate how much alcohol is in the breath sample provided 

In our experience, the DMT is now being used in the counties in which we practice most often—Kent (Grand Rapids, Kentwood, Grandville, Walker, etc.), Mason (Ludington), Mecosta (Big Rapids), Muskegon, Newaygo (White Cloud), Oceana (Hart), and Ottawa (Grand Haven, Hudsonville, Holland).

Michigan law sets forth very specific criteria that must be followed in breath testing cases:

  1. The officer administering the test must be qualified to do so, i.e., be a certified class II, IIIA, IIIB, IVA, or IVB breath test operator
  2. The breath testing machine must be checked for accuracy once per week and test within an acceptable range (.76 – .84)
  3. The breath testing machine also needs to be properly calibrated every 120 days
  4. The test subject must be observed for 15-minutes prior to the administration of the test, so that the person administering the test can verify that the subject did not regurgitate, smoke, or place anything in his/her mouth, any one of which can affect the accuracy of the test
  5. The test must be properly administered

Following these protocols is essential to obtaining an accurate and reliable test and, if any of these protocols are not followed, the results may be subject to suppression, especially if the case can be made that it affects the reliability of the results. Our attorneys carefully examine all of these protocols looking for any openings to challenge the admissibility of the results of a breath test in your case.

In addition, there are a number of other evidentiary, legal and scientific challenges to the admissibility of the results of a breath test that the experienced drunk-driving attorneys at Springstead & Bartish will explore to try and either win your case or get the best results possible. Call now for a free consultation about your case.

1. Attacking Borderline Breath Cases

As discussed above, in any drunk-driving prosecution based on a breath test, the prosecutor must prove that the amount of alcohol in a given breath sample is over the legal limit beyond a reasonable doubt. To do so, the police must first measure or estimate how much alcohol is in a breath sample using a breath-alcohol testing machine, i.e., a DataMaster DMT. However, as the following discussion demonstrates, it is impossible to ever be 100% certain of any measurement. This basic scientific principle is very important to borderline breath cases.

a. Basic Science of Measurement

A measurand is the object or thing being measured. In the case of breath-alcohol testing, the measurand is the amount of ethyl alcohol in a breath sample. Science tells us that it is impossible to know the true value of the measurand. Thus, a measurement can only provide the best estimate of the measurand. In other words, you can never be 100% certain about the true value of your measurement. Determining how much uncertainty is associated with a measurement is, therefore, a critical part of the science of measurement.

Knowing how much uncertainty is associated with a measurement, or a measurement process, dictates how accurate the measurement is and, consequently, whether it is fit for its intended use. Conversely, without knowing how much uncertainty is associated with a measurement or measurement process, it is impossible to tell whether the measurement is fit for its intended use.

For instance, if you bought an outdoor weather thermometer, it might be acceptable if the thermometer’s measurements had an uncertainty rate of +/- 0.10%. However, if you were accused of a crime and given a breath-alcohol test, you might not feel that the same uncertainty rate (10%) is accurate enough, especially knowing that if you were convicted of the crime, the conviction would stay on your record permanently and possibly cost you your job, in addition to all the other consequences that flow from a conviction.

Fortunately, Springstead Bartish & Borgula Law and leading DUI Attorney Gary K. Springstead, along with Attorney Michael J. Nichols, have led the way in forcing the State of Michigan to develop any uncertainty estimate for its breath-testing machines (and its blood tests in a prior case) in one of the first legal/scientific challenge to Michigan’s new breath-testing machine, the DataMaster DMT. Now, as a result of this legal battle, waged for more than a year in Kent County, the State can be held accountable for the uncertainty in its estimates in breath cases. This is especially critical in borderline cases because the prosecution’s witness(es) will have to acknowledge, under oath, that the results of the breath test can vary anywhere from 5.25% to 7.09%, depending on the applicable B.A.C. range, according to the State of Michigan’s own study (our expert’s estimates are slightly higher than theirs).

It is also important to note that this uncertainty estimate only relates to the machine and still does not account for the uncertainty inherent in testing humans, a potentially high source of uncertainty in the process, given how physically different people are. Best of all, the information and knowledge gleaned from this case can now be brought to bear in your case and will almost certainly benefit borderline DUI cases across the state.

If you are accused of operating a motor vehicle while being over the legal limit, call Springstead Bartish & Borgula Law for a free consultation with one of our experienced attorneys to see whether a scientific challenge to the breath-alcohol test might help your case.

C. Challenging the Admissibility of the Results of a Blood Alcohol Test

Another way of proving a person operated a motor vehicle while being over the legal limit is to test their blood for presence of alcohol. This is a common method of proving intoxication that requires the test subject’s blood to be drawn and, ultimately, tested at the state police crime laboratory. The Michigan State Police crime laboratory tests the blood using traditional gas chromatography.

Because seizing a sample of blood is a physically invasive procedure, it is carefully regulated to both ensure the safety of the test subject and also satisfy the requirement of the Fourth Amendment that any government searches be reasonable. In addition, the procedures put in place in Michigan are also designed taken to the chain of custody for the evidence for use at trial. Thus, to be admissible, the prosecution must be able to prove:

  1. Blood sample was taken in a timely manner
  2. The sample was from a particular person
  3. The sample was taken by an authorized licensed physician, a medical technologist, or a registered nurse designated by a licensed physician
  4. Sterilized instruments were used
  5. The sample was properly preserved and labeled
  6. Proper methods of transportation were used
  7. Procedures used in the test sample withdrawal were proper
  8. The identity of the supervising person, under whose care the sample was withdrawn, was established.

Source: ICLE, Michigan Drunk Driving Law and Practice, Breath and Blood Testing.

Like the breath tests discussed above, blood tests are not 100% accurate. In fact, as a result of another DUI case in Ludington, Michigan, in which Attorney Gary K. Springstead and Michael J. Nichols teamed up, the Michigan State Police were pressured to develop an uncertainty estimate for its blood tests. This uncertainty rate is now disclosed on the results of blood tests, but, for this uncertainty to really make a difference, a knowledgeable DUI attorney will request the actual results of the tests on the gas chromatograph, which shows the B.A.C. estimate to the third digit. This uncertainty rate can certainly make a difference in borderline cases and can be used at trial to call into question whether the prosecution has proved its case beyond a reasonable doubt. Of course, the experienced and knowledgeable DUI attorneys at Springstead Bartish & Borgula Law also know that there are many other factors that are not accounted for in the State’s uncertainty estimate, as well as other avenues to attack the prosecution’s case.

If you are facing a criminal prosecution for drunk driving in Michigan based on a blood draw, call now or click to contact us online for a free consultation with the top Michigan Drunk Driving Defense Attorneys at Springstead Bartish & Borgula Law. We defend DUI charges throughout West Michigan with offices in Grand Rapids & Fremont MI