DUI Breath Testing

Breath test results are the most common forms of evidence used to convict Michigan drivers accused of drunk driving.  There is an expectation and a trust that because these breath testing machines, in Michigan called “DataMasters,” are properly maintained by the police.  Other states have shown that this trust is often misplaced.

This time the culprit is the District of Columbia, where D.C. Attorney General Peter Nickles said the breath testing machines were improperly adjusted by city police.

Mary Pat Flaherty, Washington Post Staff Writer (Thursday, June 10, 2010) has indicated that “nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.”

Furthermore, D.C. Attorney General Peter Nickles said that the jailed defendants generally served at least five days.

The report indicates that all machines tested where wrong, usually by 20%.  A lawsuit has been filed by those wrongfully convicted.

But the District isn’t the only state to have such problems.  Here is a list of prior articles dealing with the same issues:

• DUI Dismissals Result From Faulty Breathalyzers
• Thousands DUI Cases Possibly Dismissed Over Invalid Breath Test Certificates
• Radio Frequency Can Cause Falsely High Breath Test Results
• Thousands of Breath Tests Improperly Admitted in Michigan DUI Trials

If you’ve been arrested for DUI in Michigan, and believe the test results are flawed, then you should seek out a top DUI lawyer to assist you with your case.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Alcohol Sensing Steering Wheel?

Always a glutton for media attention, U.S. Senator Charles “Chuck” Ellis Schumer has involved himself in such controversial and well-covered issues as immigration reform and universal voter registration.

Schumer’s latest quest for the media lime-light includes his push for legislation “to boost alcohol-detection technology in cars, which he said could greatly reduce drunk driving — especially for repeat offenders.” [i]

According to Schumer: “Technology like this is potentially breathtaking in terms of saving lives.”[ii]

The Staten Island Real-Time News reports: “The bill, aimed at fostering research and development, looks to create a partnership between anti-drunken-driving advocates, including MADD, and car manufacturers to design devices to keep intoxicated people from getting behind the wheel.[iii]”

According to Patentstorm.us there are many such anti-drunk driving technologies in the works.  For example:

Other technologies, aside from the breath analyzers, have been combined with automobile interlock systems to prevent an intoxicated person from starting a vehicle.

For example, U.S. Pat. No. 5,743,349, issued to Steinberg in 1998, includes a non-invasive reader of a person’s blood alcohol concentration in combination with ignition interlock circuitry to prevent operation of a vehicle by an intoxicated person.

The non-invasive BAC reader utilizes optical spectroscopic electromagnetic radiation to detect alcohol levels in blood. The sensor is preferably dash mounted and requires the driver to insert his or her finger into the device, and depending upon the result of the test, the operator may be instructed to wait or to find a non-impaired operator.

Similarly, U.S. Pat. No. 6,229,908, issued to Edmonds, III et al. in May 2001, discloses a vehicle interlock device that includes both a blood alcohol detector that measures intensities of wavelengths of light emerging from a finger inserted into the sensor device, as well as a fingerprint scanner, which compares the fingerprint of the user to a pre-stored image of the fingerprint of the principal driver of the vehicle. Although acceptable for testing a driver at the time of starting the vehicle, the ’349 patent is not applicable to continuous BAC testing after engine startup.

Although these aforementioned devices are a good start towards keeping impaired drivers off the road, they fail in several regards. Whether the BAC sensor is a breath analyzer or an optical spectroscopic reader, they all require some positive action by the driver, thereby limiting it to discontinuous operation, once at engine startup, and then randomly during operation of the vehicle.

A technology that offers an alternative approach to non-invasive detection of BAC, as well as continuous BAC testing, is based upon the knowledge that alcohol is eliminated from the body by two mechanisms: metabolism and excretion. Metabolism accounts for greater than 90% of ingested alcohol and occurs principally in the liver. The remaining 10% of ingested alcohol is excreted, unchanged, wherever water is removed from the body, including breath, urine, perspiration, and saliva. The excreted alcohol is significant because it can be measured and correlated to a person’s BAC.

U.S. Pat. No. 5,944,661, issued to Swette et al. in 1999, discloses an electrochemical sensor that continuously measures very low concentrations of ethanol vapor at the surface of the skin, as well as skin properties, such as temperature and ionic conductance.

Similarly, Secure Continuous Remote Alcohol Monitor.RTM. (SCRAM.RTM.), manufactured by Alcohol Monitoring Systems, Inc., is a non-invasive alcohol-detection system that automatically tests for blood alcohol content (BAC) by monitoring transdermal alcohol present in insensible perspiration, which is the constant, unnoticeable excretion of sweat through the skin. SCRAM.RTM. measures the concentration of ethanol (a byproduct of alcohol consumption) in perspiration, in order to determine a person’s BAC.[iv]

Schumer intends to jump-start these technologies using government money to the tune of 12 Million per year.  However, not everyone is pleased with Schumer’s bill. The American Beverage Institute criticized the legislation, saying the devices should be kept to vehicles of repeat drunken driving offenders and not be mandated in vehicles as standard equipment, although the legislation does not include such a mandate. It also argued that the devices could keep people from driving even if their blood alcohol level is less than the limit for drunken driving, such as after having a drink at a restaurant.[v]

Much has been previously written about the promise of technology in ending drunk driving, and about many of the problems inherent in such attempts.  For example, see:

Will Technology End Drunk Driving?

Will Ignition Interlocks End Drunk Driving?

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

[ii] Id.

[iii]According to: Judy L. Randall , June 04, 2010, 6:28AM

[iv] http://www.patentstorm.us/patents/7413047/description.html

[v] Washington Daily Times.com, May 28, 2010.

Dreager Breath Test Machine

In South Africa, the use of the Draeger breathalyzer machines in drunk driving cases has been suspended until further notice because of a “legal loophole caused by a certification problem with the machines,” according to the Cape Times (Eliseev).

The National Prosecuting Authority (NPA) confirmed that it had withdrawn all court cases that had not yet started and that relied on the machines’ readings. Now all drivers arrested for driving under the influence will be automatically taken for a blood draw. These test results can take up to a year and half to get back, where breathalyzer machine results were instantaneous.

A representative from the company who manufactures the machines, Draeger, said the recertification process can take several months to complete. In the meantime, the NPA has agreed to dismiss only those drunk driving cases which have yet to start, and will not dismiss those that have already been completed.

Some think the dismissals are politically motivated.  According to one source, “I find it difficult to believe that the move to invalidate the Dräger machine in the Western Cape was not an attempt by ANC-aligned elements in the National Prosecuting Authority to influence the outcome of the case against Mthembu.”  Mr. Mthembu is an African National Congress national spokesperson.

Here in the United States, Draeger issues the machines to individual states with a Certificate of Accuracy. (Evan M. Levow). While every state is responsible for accuracy checks on a regular basis, certain states, such as New Jersey, believe they simply need to calibrate the machines and do linearity checks. However this does not ensure the machines are in proper working order.

Michigan uses a breath test machine called a DataMaster, and is about to begin using the new DataMaster DMT.  Here is a video showing this new breath test machine.

During a routine drunk driving arrest in Michigan, the arresting officer will have the accused submit to a DataMaster test at the police station or, if the client refuses this first option, then a blood sample will be obtained.  So far, Michigan has not had the type of certification problems facing prosecutors in South Africa.

When researching which attorney to hire for a Michigan DUI/OWI charge, make sure the firm has an extensive background in breathalyzer machine training. There are certain details, such as the events that occurred in South Africa that can help you win your case.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Michigan's New DMT

If you’re charged with a Michigan DUI or OWI (drunk driving), then perhaps the strongest piece of evidence that the prosecuting attorney can use against you case is the breathalyzer results.  These will be produced at the police station after being arrested for DUI in Michigan. Without these results perhaps showing that you were over the legal limit of 0.08, the prosecutor will have a tough time charging proving a Michigan DUI. And if the breathalyzer device that produced those results is faulty, then your Michigan DUI case could be dismissed.

That is exactly what happened recently in Washington, D.C. Local police discovered that the results given by their alcohol intoxilyzer machines were not accurate. (The Washington Post, Williams and Weil) They are now working closely with the Attorney General’s office in order to immediately investigate the matter. As of now, they have not been able to pinpoint what caused the inaccurate results. Some say it could be possibly be the operators (meaning the police officers who assisted the arrestees performing the test), the solution used to calibrate the machines, or the machine itself. The problem was discovered during a police department audit.

When researching Michigan DUI lawyers, it is important to know what kind of training and certification the Michigan attorney has had with breath testing. While there are other types of evidence the prosecutor can use against you, having a Michigan DUI defense attorney who is on your side and knows how to specifically fight drunk driving cases will be most beneficial to you.

It was just such a DUI lawyer from DC (Bryan Brown) who was able to find these problems.  As reported: One defense attorney said Friday that in the past three weeks charges of driving while intoxicated were dropped in three of his cases. He said prosecutors told the court that police lacked confidence in the test results.

If you want to challenge your Michigan DUI, keep in mind that, as reported:

A Web site concerned with the defense against DWI charges said “it is critical” to contact “a lawyer that is familiarwith the errors associated with breath testing.”

Causes of error are “many indeed,” the site said.

A Florida newspaper this week reported that a vigorous challenge to breath testing machines was underway in the Palm Beach area, with results being challenged in an estimated 400 cases.

Seven judges in the Palm Beach area were sorting through technical testimony about the machines’ accuracy, the report said.

When looking for a Michigan DUI lawyer who can challenge your breath test, some questions you may ask are: has your Michigan DUI attorney been certified from the company who manufactures the breathalyzer? Is your Michigan DUI attorney a certified instructor and practitioner of the Standardized Field Sobriety Tests?

You should also look into any published articles or books on drunk driving the Michigan DUI lawyer may have written as well. Make sure that when you choose the Michigan DUI attorney who will try to minimize your drunk driving charge, the attorney has a passion and will for continuing education in drunk driving defense.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

DUI Police

If you feel you have been wrongly accused of drunk driving in the state of Michigan, you could be right. Recently, in a Vermont court room, one judge issued an order against a state trooper who claimed that the driver’s BAC (Blood Alcohol Content) was 0.102 in order to support license-suspension citation when in fact the driver’s BAC was only 0.069, well below the legal limit of 0.08. (Sam Hemingway of the Burlington Press)

The law states that roadside preliminary breath tests like the one administered by Officer David Robillard are not admissible in court. In this case, Robillard used these preliminary results in the police report he filed, thus supporting a charge of negligent operation of a motor vehicle leading to a driver’s license suspension against 45-year old William Henn of Lowell, Vermont.

In the police report, Robillard described a sequence of events that had led him to believe Henn was driving under the influence of alcohol. He first witnessed the driver swerve across the center lane, pull over to the side of the road, and exit the vehicle without putting it in park. It was after viewing this that Robillard initiated the traffic stop. He conducted a preliminary breath test which produced a result of 0.118 percent.

Officer Robillard believed that the law allowed him to revise the driver’s breath test reading to what he thought was a scientifically valid figure. A sworn affidavit from a state chemist found that Henn’s BAC was 0.102, which is the figure Robillard had used in his accusations. However, when the driver performed the Datamaster breathalyzer test back at the station, the sixth test proved that his BAC was only 0.069. (The first five tests were invalid from Henn blowing short breaths into the device.) At this point, any and all drunk driving charges against Henn were invalid.

When reviewing your Michigan drunk driving case, it is important for you and your highly trained DUI attorney to take a look at such details related to the events of the arrest. If the arresting officer cannot prove that your blood alcohol level was over the legal limit, the charge could well be dismissed.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!