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 OWI / DUI 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 OWI 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.