If you’ve been arrested in Michigan for drunk driving then there is an excellent chance that you were asked to take a breath test. If that breath test result was above .08, then the state can use this as the only evidence needed to prove that you had an unlawful bodily alcohol level at the time you were driving. (UBAL). In other words, you can be convicted based only on this breath test evidence.
But what if the test was wrong? A wrong breath test result can mean a wrongful conviction, and this was the major problem with cases from September 2009 to November 2010 in Philadelphia. According to reports the police found the problem and notified defense attorneys. Furthermore:
“Besides the cost of reviewing thousands of DUI prosecutions and likely retrying some, the police and city could face civil lawsuits by people wrongly convicted – some of whom may have lost their driver’s license, their job, or their freedom.”
It is interesting to note that it was the police and not the defense attorneys who found most of the problems, but understanding how the machines are maintained, this is really not surprising.
In Michigan and every other state, the breath test machines are calibrated and maintained by the police or by people working closely with the police. Although logs are kept it is nearly impossible to know if something is wrong by simply looking at the logs.
According to the Michigan Administrative Rules for Breath Testing, calibration checks are performed by the police once every calendar week. This process consists of the police preparing a solution of alcohol and water, and passing the vapor from this solution into the breath testing device. The idea is to prepare a .08 solution, and so long as the machine reads this .08 solution as between .076 to .084 the machine is said to have passed the calibration check.
Actual calibration however takes place at the factory before the machines are placed into service, then possibly every 120 days when an employee of the manufacturer checks the machine. This employee is a former State Trooper.
There is no outside person or agency whoever comes into the police station to independently check the machine to make sure that it is working properly. This is a significant problem, and in part this is why problems with calibration are so difficult to find. But, as has been reported here, and in many other places around the country, problems do occur. For example, In February 2010, a consultant hired by Washington’s police confirmed that Breathalyzers had not been checked for accuracy; a programming error went undetected.
The best thing to do if you think the breath test machine was wrong in your case is to have a well-qualified lawyer review your case. The worst thing that could happen would be for you to plead guilty or be found guilty based on faulty evidence.