In Michigan, OWI offenders may be required to refrain from drinking alcohol during the term of their probation. In order to ensure that they don’t consume any alcohol, the state can conduct both scheduled and surprise tests. One such test is the EtG test, short for ethyl glucuronide test.
When an EtG test reveals that you have consumed alcohol, this can serve as evidence of a probation violation. A probation violation could result in additional penalties, up to and including incarceration. However, the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) has declared the EtG test to be unreliable. When an EtG test is used as evidence against you, it is very important for you to speak with an experienced Michigan probation violation lawyer to defend against the accusations and protect your legal rights.
About ETG Tests
An EtG test is a urine test used to determine if you have consumed any alcohol in the previous 80 hours. It is referred to as a biomarker test. Biomarkers are physiological indicators that an individual has been exposed to alcohol.
A number of different biomarkers exist, including both indirect biomarkers (such as changes in red blood cells that occur as a result of heavy or ongoing alcohol abuse) and direct biomarkers (such as blood and breath tests). An EtG test is a direct biomarker, as consumption of or exposure to alcohol can increase the levels of ethyl glucoronide in the urine.
When the EtG test came into widespread use as a test for alcohol consumption in the early 2000s, it was billed as one of the most sensitive and reliable tests available. Many employers adopted the test as a standard form of testing by screening employees and operating safety programs. Law enforcement and probation officers also began to make use of EtG tests to ensure that individuals refrained from using alcohol when directed to, such as when on probation for OWI.
Problems With ETG Testing
Unfortunately, while EtG tests are often treated as an accepted method of determining whether alcohol consumption had occurred, the tests are actually an unreliable method of assessing alcohol consumption. In fact, SAMHSA issued an advisory in 2006 indicating that the EtG test is “scientifically unsupportable” and “should not be used as the sole basis for legal or disciplinary action.”
SAMHSA issued the warning because the test is too sensitive and is unable to distinguish between alcohol absorbed into the body from the use of common household products and alcohol consumed for recreational use. In other words, just because you have alcohol in your system that results in a positive EtG test, this cannot be considered definitive proof that you drank alcohol.
Many everyday items that you have in your home can result in a false positive on an EtG test. For instance, SAMHSA refers to a popular hand sanitizer that is approximately 64 percent ethanol. When the ethanol in the hand sanitizer is absorbed into the body, your EtG levels can become elevated, just as if you had consumed a beer or other alcoholic beverage.
Other studies have also indicated that the EtG test is not a reliable measure of whether someone has consumed alcohol, including a 2009 Swedish study published in Forensic Science International and available from the U.S. National Library of Medicine.
ETG Testing and Your Legal Case
When you are accused of a probation violation based on a failed EtG test, you may challenge the accusations against you by raising questions related to the reliability of the testing method. Individuals accused of a probation violation due to the alleged consumption of alcohol have the right to due process under the law, which means that there must be a probation revocation hearing before legal action is taken.
At this hearing, you and your Michigan criminal defense attorney can raise doubts as to whether the EtG test was an accurate measure of your alcohol use. While the prosecutor or probation department alleging the violation does not have the burden of proving the violation beyond a reasonable doubt, as they would in a criminal trial, they are obligated to demonstrate that the violation likely occurred. Casting doubt on the EtG test results can make it more difficult for them to meet this burden and can help you to avoid the consequences of an alleged OWI probation violation. Before you make any decisions, it is important to speak with a top-rated Michigan DUI attorney today.
Accuracy Considerations for EtG Testing
Before an individual is required to submit to an EtG test, they are generally given a list of products and foods that may cause false positive results. These items may include colognes, perfumes, some OTC medications, insecticides, mouthwash, and even hand sanitizers.
Another thing to remember is that while EtG testing results can be accurate in detecting Ethyl Glucuronide, it doesn’t necessarily mean that an alcoholic drink was consumed. A September 2006 advisory bulletin by the U.S. Dept of Health and Human Services based on clinical results regarding EtG testing, contains several important points to remember:
The level of alcohol in your bloodstream, or blood alcohol concentration (BAC), determines when you are operating while impaired (OWI) or driving drunk. Any driver with a blood alcohol concentration of .08 percent or higher in Michigan is considered to be driving while intoxicated, or OWI. Yet two people drinking the same number of alcoholic drinks can have widely varying BAC readings. That’s important to recognize.
If you have been charged with OWI / DUI / DWI in Michigan, you want an experienced DWI defense attorney who understands how BAC is calculated and common errors in BAC computations.
EtG Cut-Off in Michigan
An EtG Test is used to screen for alcohol problems, document abstinence, detect relapse, and monitor for drinking. The EtG test can be inaccurate. However, false positives are possible due to accidental exposure to alcohol. Accidental exposure to vanilla extract can result in EtG levels exceeding 100ng/ml. Tests of cleaning products, hygiene, and personal hygiene to assess accidental or intentional exposure to alcohol have never yielded a positive EtG reading greater than 500ng/ml. This is often used by courts as a threshold.
The Court may sentence a defendant to imprisonment if it determines that a breach of bond or violation of probation has occurred due to a positive EtG or positive breathalyzer test. The Court can decide whether to incarcerate you. The Court will always be concerned about whether the public is at risk when a bond or probation is issued for an offense such as operating a motor car while impaired (OWI). Judges are expected to adhere to the probation or bond conditions they have imposed. They also consider any violation of probation or bond violation an erosion of the Court system’s respect. Relapse can often be a part and parcel of recovery. Judges may offer additional options for probationers or bonders with positive breathalyzers or positive EtGs to comply fully with the terms of probation or bond.
Factors That Affect BAC Calculator Results
When you drink alcohol, it is absorbed from your stomach and intestines into your blood where it is broken down or metabolized. Blood alcohol tests make assumptions about your level of intoxication based on an average person’s absorption of alcohol under similar circumstances.
You can get a rough estimate of your BAC by using the BAC calculator on this website. The basic formula for the BAC calculator comes from the National Highway Traffic Safety Administration. From this estimate, you can see how many drinks it would take to be charged under Michigan’s drunk driving law or new Super Drunk law. The BAC calculator is just a general guide, and it should not be used to determine whether it’s safe for you to drink and drive. If you have already been charged with OWI / DUI / DWI, you may notice that the BAC estimate from the BAC calculator is markedly different than the breathalyzer test numbers the police gave you.
Breathalyzer results are notoriously inaccurate and vulnerable to court challenge. A number of factors affect how quickly alcohol is metabolized, including your gender, weight, medications, what you ate, and your genetic makeup. For example, women typically have higher BACs than men after consuming the same amount of alcohol.
A skilled Michigan OWI lawyer understands the variables and knows how to analyze BAC test results and raise successful legal challenges to questionable results.
Contact Michigan Defense Law to get the legal representation you need.