What are preliminary portable breath tests, and are those typically given in Michigan?
Yes. In almost every case, before the police place somebody under arrest for drunk driving, they will ask the person to submit to a preliminary breath test. Now, the preliminary breath test is a breath test that’s given on the side of the road using a handheld portable breathalyzer. You do not have to take that preliminary breath test. You can refuse it and it’s just a civil infraction, which is a ticket and no points. The breathalyzer at the station, on the contrary, must be taken, or else you’ll face losing your license. The one on the side of the road—the preliminary breath test—is not required. Generally speaking, I advise people not to take that test because all it really is is evidence that is going to be used against you.
Do people confuse that test with the official breath test at the police station?
Yes, quite a bit. People feel like they have to take that test, and they’re also under the impression at that point in time that somehow cooperating is going to work out and maybe the officer will let them go and not charge them with the DUI, but that really never happens anymore.
Are those tests pretty accurate or do they have some issues?
They’re oftentimes very accurate and correlate with the Datamaster test at the station. However, there are times when they are not working properly, and sometimes they’re affected by the cold weather or their battery is weak or there are different problems related to what’s been in the client’s mouth or stuff like that that will cause them to have an inaccurate reading. They are not admissible in your trial as proof of your intoxication and the reason for that is that they’re not considered as reliable as the Datamaster test, which is the required evidence to convict you.
So are the results used more to determine whether or not to arrest someone?
Exactly. They are the final step in the officer developing enough evidence to arrest you. In order to arrest you for drunk driving, they have to have probable cause to arrest, meaning they have to have enough evidence to believe that a crime was committed and that you committed it. Really, their best piece of evidence in a DUI investigation is typically the preliminary breath test. That’s why, generally speaking, we advise clients not to take that preliminary breath test.
So not taking it isn’t going to harm you, and it’s just the test at the station that you should take?
Yes. The test at the station is called the Datamaster test. That test is required under Michigan’s implied consent statute. What that means is, by accepting a driver’s license, you are giving consent to take the breath test when demanded or when lawfully arrested by a police officer. In other words, you are agreeing that, as part of the deal to have a driver’s license, you agree to take that test when properly asked. The police are required to read you your chemical test rights, and they typically will do so off of a basic form. They will ask you, “Will you take the breath test?” If you refuse, they will write you up for a separate type of case called “Implied Consent Violation.” If you don’t object to that and demand a hearing within 14 days of that being issued to you, your driver’s license is suspended for a period of one year, even if you hadn’t had anything to drink that night. Since you were lawfully under arrest, though, they can suspend your license for one year.
Now, the police have to follow a few steps to properly administer that test, but you’re not allowed to just refuse it and walk away without consequences. On a first refusal, if you get the one-year suspension, you can request that the circuit court grant you a restricted driver’s license based on a hardship. In that case, though, there is a very detailed and specific process you have to go through. It’s really just like having a whole second case that you have to deal with because they will typically get a blood draw to get your blood alcohol level anyway.
Can any police officer administer the breathalyzer test at the station or do they have to have any special training? What are some of the holes that you can punch in the prosecution’s case when it comes to those tests?
As part of the defense of your drunk driving case, we’ll check to make sure that the qualifications of the officer who administered the Datamaster test meet the qualifications required by the State of Michigan. Not every officer can do it, but most of the departments in Metropolitan Detroit will try to get as many officers as possible certified as breath test operators or Datamaster operators so that they always have somebody available who can administer that test. That is something that we check, though, to make sure that the police have done it properly. If somebody who is not certified were to administer the test, we may be able to get the test results thrown out, which might result in the entire case getting thrown out.
What is the observation period? Do most officers follow that?
That’s a good question. The observation period is 15 minutes. What that means is that they are supposed to observe you continuously for a period of 15 minutes before you blow into the tube of the Datamaster and give your primary breath sample. The purpose of that observation period is to make sure that if there was anything in your mouth or if there was any mouth alcohol in your mouth, then there is time for it to dissipate and therefore allow for a clean and pure sample for the Datamaster. We have found instances where officers did not watch closely or the client put their hand to their mouth repeatedly or the client had burps and hiccups or regurgitation of some sort or they had a really bad cold and it was obvious that they were spitting up mucus or phlegm or other violations of that 15-minute observation time that gave us the evidence that we needed to get the breath test thrown out. The observation time is a very important issue. Generally speaking, most police departments will videotape the administration of the Datamaster test and therefore, through the discovery process in the defense of the client, we can obtain copies of those videotapes and we can watch the actual administration of the Datamaster test in order to determine whether or not any violations have occurred. If they have occurred, then we can file the appropriate motions in court to throw out the evidence.
Are there ever any sort of machine errors that might cause an inaccurate breath test reading?
Yes. It’s just like any other machine in the sense that it’s not perfect and things do go wrong. We had a case not too long ago where the machine kept malfunctioning and it was printing out evidence of the malfunctions. The Datamaster operator then ended up smacking the machine a couple of times and turning it off and on before he was able to get a sample. In that case, we could not get the evidence thrown out, but we went to trial on that case and we ended up getting a not-guilty verdict for the client because of the fact that it was a relatively low breath test score and the jury was concerned about the reliability of the results given by that machine that was not working properly right before it was used to take the sample. Anything that might go wrong with that machine can sometimes cast doubt on its reliability and be enough for a jury to determine that the person was not guilty since they don’t want to find somebody guilty based upon faulty evidence.
There are a lot of things that can happen. There could be radio interference, electrical issues, issues with foreign substances being detected from the air samples, etc. There are a lot of potential problems with the Datamaster.
How often do the machines have to be calibrated?
That’s another good question. They have fixed maintenance schedules, and that’s another issue that we do look at when representing our clients. We make sure that the maintenance is being done properly. The way we do that is that we request copies of the Datamaster maintenance logs from the police department. Those are records that are required to be kept, and they’re required to be certified and signed and dated every time there is required maintenance done on the Datamaster. So we look at those logs to make sure that the maintenance is being done properly. Once in a while, you’ll find a situation where maintenance was due but it wasn’t done, and that can either be something that we can use to challenge the admissibility of the evidence, or to argue against its reliability. That’s another important piece of the defense.
For more information on DUI and breath tests in Michigan, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (248) 451-2200 today.