DUI Attorneys in Livingston County, MI
As our Livingston County DUI defense attorneys have found in the Michigan Annual Drunk Driving Audit, when looking at breath tests administered, one of the most common means of proving an operating while intoxicated (OWI) charge, the Livingston Sherriff’s Office performs the majority of the tests in Livingston County at 85 tests. The Michigan State Police (MSP) Brighton barracks performs the second highest number of breath tests with an annual number of 44 tests, followed by the Fowlerville Police Department.
These cases are handled within the 53rd District Court.
While people commonly use the term, Breathalyzer, that was a brand name of a breath testing instrument that has not been used in decades. Today, police in Livingston County, MI mostly use a machine known as the Datamaster DMT that is considered a very sophisticated breath alcohol content (BAC) testing machine. If a prosecutor is able to get the score admitted at trial, and that result on two consecutive tests is above 0.08, then you can be found guilty of operating while intoxicated pursuant to MCL 275.65(1)(a).
Challenging a Breath Test Result in Livingston County, MI
While it is true that a result properly admitted in an OWI case can result in a finding of guilt, there is often a lot your experienced OWI defense attorney can do to beat the charges by arguing for the exclusion of the breath testing result. The machine is considered accurate, but only if all procedures were followed and the operator was properly trained.
For example, the officer using the machine must have completed a six-hour training course on the testing device. Your attorney can request proof of this training, and in some cases, we have seen where an officer who was not properly trained was using the Datamaster DMT to perform the test. If the operator was not certified on the machine, then this could be a basis for excluding the breath test score.
Another reason for excluding the results is if the officer did not observe the suspect for 15 minutes prior to administering the test. While we often see people on television given a breath test right after they have consumed alcohol, they should never do this in a real case. The machine is designed to test deep lung alcohol in the alveolar sacs. This is alcohol the suspect has allegedly consumed and then had time for the alcohol to work its way into the suspect’s blood stream. It may seem counterintuitive, but if a person were to drink a shot of alcohol and then take a breath test, they would have a volume of alcohol on their breath, but that would be through what is known as mouth alcohol, yet at the same time, the subject would have a blood alcohol of 0.0 assuming they had not had anything else to drink. This is because the alcohol has not had time to work its way to the person’s blood stream, so this person is not intoxicated.
The machine may read this mouth alcohol and produce a false positive result. That could result in an improper score being use in court. These sophisticated breath testing machines have a mouth alcohol detector, and are even equipped with a room alcohol testing device capable of detecting alcohol on a person’s shirt. But these tests are not fool proof. For this reason, an experienced Fowlerville DUI defense attorney will request the station house video and body camera footage to see if the 15-minute waiting period was actually observed.
This is not to say that a person would normally drink in a breath testing room, but a suspect might burp or have acid reflux. We have all experienced that painful and uncomfortable feeling of acid reflux and that might lead to the suspect’s mouth becoming contaminated with alcohol. That could call the breath testing results into question. There are many other ways your attorney can challenge a breath testing instrument result, and this should be discussed more fully during a free consultation.
It should be noted that a seeming violation of the 15-minute observation period is not an automatic suppression of the breath testing score. One case that addressed this issue was People v. Wujkowski, 230 Mich. App. 181 583 N.W.2d 257 (1998). In Wujkowski, a case from the Michigan Court of Appeals, the court addressed the issue of what happens when the operator of the breath testing equipment does not continuously observe the suspect for 15 minutes prior to administering the test.
In this case, the operator of the breath testing machine testified he that had taken the defendant to the booking room to administer the breath alcohol test. He was using a timer on the machine to time the 15 minutes and noted the correct time in his report. However, the evidence showed that he had taken his eyes off the suspect for a period of six seconds when he was checking the time and checking the machine. In other words, he was watching the suspect, but not actually staring at him for the entire 15 minutes. The court held that this time frame when the officer was not directly observing the suspect was so minimal that it would not call into question the validity of the test results.
If, however, there had been actual evidence that the suspect burped, vomited or had acid reflux during that time, there may have been a very different result. This shows that the court is willing to enforce the waiting requirement, but there is some leeway afforded the officer so it does not create what the court would see as a draconian result in favor of the defendant.
This is only one case in a line of cases that address this issue and if you have been arrested on suspicion of drunk driving, you should discuss this with your attorney during your consultation.
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