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.

The Rochester Post has just reported that the number of people drunk driving in Rochester Michigan is down significantly this year.  According to the article:

Data collected over the past two years shows a pattern of decline for drivers caught operating while intoxicated, said Rochester Police Chief Steve Schettenhelm. According to the city’s records, there were 161 such arrests in 2008, an average of about 13 per month. In 2009, there were 132, or approximately 11 per month. As of this month, there have only been 31 in 2010, which comes out to about six per month.

The article is light on explanations for the decrease in drunk driving in Rochester Michigan:

“Arrests are down so far this year. There can be a number of reasons for this,” he said. “Traditionally, arrests pick up in the summer months. So we are down some for the year, but we will have to wait and see if this is a consistent trend.

“The economy may have an effect on the number of people who are out drinking and driving,” he said.

Rochester Detective Paul Matynka said that because of the city’s nightlife amenities, drunken driving arrests generally increase over the weekends.

There is also a claim that although the arrests are down, it has no impact on the police budget.

Schettenhelm said that while the Rochester Police Department does get a percentage of the court fines paid by drunken driving offenders, the decrease in arrests over the past year and a half hasn’t affected revenues.

“We do receive some funds from the court in terms of fines … (but) the money is not really a consideration, considering the total police budget,” he said.

Previous posts have addressed this issue, and suggest that there are many possible causes for fewer Michigan DUI arrests.  For an article discussing the decrease in DUI arrests in Michigan in detail, and offer several explanations, please see:

• Michigan Drunk Driving Arrests Continue Yearly Decline

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!

Gas Chromatograph

Many Michigan DUI lawyers see blood tests as nearly impossible to defend.  This may be due to a lack of knowledge on their part, or it may be due to a belief that jurors see blood tests as irrefutable.  Regardless of the basis this belief is simply not true.  Armed with the right knowledge, blood tests are actually very often easier to defend than are breath test cases.

So, from where does this “right knowledge” come?  Well, it comes primarily from two places.  First, in order to properly defend a DUI case in Michigan involving blood test evidence, a lawyer must seek out specialized training in gas chromatography.  Very few Michigan DUI lawyers actually do this because such training requires a fairly substantial commitment in both time and money.

The Michigan DUI lawyer must also seek out the appropriate information from the laboratory responsible for testing the blood.  In a criminal case, getting information from the testing lab requires that the DUI lawyer utilize a process called discovery.  As will be shown, when properly pursued, this discovery process can yield some remarkable information - information that can be used to win a client’s DUI case. And, this is exactly what happened recently in both Washington and Colorado.

Problems with DUI Blood Tests in Colorado:

According to Colorado DUI lawyer Tim Bussey, (and as written about in the Colorado Springs Independent):

“The Colorado Springs Metro Forensic Laboratory has reported that it inaccurately reported approximately 200 blood results from 2007 through 2009.  Most were from 2009 and all were reported high. The Lab believes that the N-Propanol solution was incorrect which led to an inaccurate high BAC result.  They have run their own experiments to determine why the N-Propanol concentration was off.”

Mr. Bussey further stated that: “at this point I am not sure that they (the Colorado Forensic Lab) really know what the problem was and if it has been fixed.  I have not heard of such an issue at other labs but it certainly is an area that other DUI lawyers may want to explore.”

Here is an explanation from the Colorado Springs Independent of why this is important:

From a chemist’s point of view, blood alcohol tests are simple: You prepare a batch of maybe 20 samples in glass vials, each with a precise amount of blood, a couple other ingredients, and a solution containing n-propanol, a form of alcohol that is almost never ingested. Each sample gets run twice, along with more than a dozen other solutions used as calibrators and controls.

Once the vials are sealed and catalogued, a machine detects the amounts of ethanol (the stuff in booze) and n-propanol in each, which show up as peaks in a resulting graph. Since the n-propanol amount is supposed to be consistent in all vials, the blood alcohol level can be calculated from the ratio of ethanol to n-propanol.

“All of her ethanol peaks were accurate,” he says, as were the n-propanol peaks for the calibrators and controls. In bad batches, however, her n-propanol peaks were consistently — and inexplicably — lower.

Problems with DUI Blood Tests in Washington:

In Washington the problem was more akin to the outright fraud of the part of a laboratory employee rather than simple neglect or incompetence as was demonstrated in Colorado.  According to the Seattle Times:

A San Francisco coroner’s supervising toxicologist vouched for blood-test results in drunken-driving cases for two years before prosecutors told defense attorneys that a Washington state court had labeled her a “perpetrator of fraud” while running that state’s toxicology lab.

The failure to tell defense attorneys about Ann Marie Gordon’s past problems could prove costly to San Francisco District Attorney Kamala Harris’ office.

From 1999 to 2007, Gordon ran the Washington state toxicology lab, whose main job was to analyze tests in drunken-driving cases. The lab was shut down after state agencies discovered that Gordon had vouched in court for the reliability of alcohol-detection equipment when she had not performed the tests herself.

In San Francisco, Gordon has signed sworn statements verifying hundreds of blood-test results, mostly in drunken-driving cases, as a $105,000-a-year supervising forensic toxicologist in the San Francisco chief medical examiner’s office since being hired in 2008. She has also testified in trials.

Interestingly, Michigan pays its toxicologists about the same salary paid to Gordon, but so far, there has been no proof of fraud or obvious neglect in Michigan’s blood testing program.  While this is true “so far” this may not always be true.  As indicated in the Colorado Springs Independent: “The error (in Colorado) was very difficult to identify,” he says, with no apparent pattern or equipment failure to explain.”

If you are arrested of DUI in Michigan it pays to have a lawyer well trained in blood testing.  With proper discovery it just may turn out that your blood test was too high.

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!

Drunk Driving

If you are an out-of-state driver accused or convicted of a Michigan DUI, understanding what driver license sanctions might apply can be a tricky business.  There is a second question you may have after a Michigan DUI conviction, which is “when will the driver license sanctions be applied?”

Because of our federalist system, Michigan can only impose a DUI driver license sanction against the offenders “fictional” Michigan driver license.  However, nearly every state has some type of reciprocity with Michigan, and once the home state learns of the Michigan DUI conviction, they are bound to impose a driver license sanction of their own.

What makes this issue particularly tricky is that your home state sanction may be the same as that imposed in Michigan or it may be significantly greater.  For example, first time offenders in both Illinois and Massachusetts will both receive a one year suspension in their respective home states.  In both instances hardship licenses are available, but the administrative process to obtain the hardship license may take several months.

Success is also not guaranteed.  Consequently, once your home state learns of the Michigan DUI conviction, and imposes their own sanction, you may be without driving privileges for several months.

When discussing this issue with your top DUI lawyer it is very helpful to understand how convictions might be reported by the various states.  If you are licensed in Illinois and arrested for a Michigan DUI please see this article to learn about how a Michigan DUI will impact an Illinois driver license.

The Three Reporting Systems Used Nationally:

There are three systems for reporting suspensions.  The National Driver Registry (NDR) is a passive database to which suspensions are reported but not necessarily sent to the home state.  The Non-Resident Violator Compact (NRVC) and the Driver License Compact (DLC) are law for reporting suspensions directly from one state to another.  It works this way.

If an adverse action such as a suspension or revocation due to a Michigan DUI  occurs, including an administrative suspension, it is reported to the NDR by the state in which it occurs.  If it is an action for which there is no direct state reporting law, (such as some administrative suspensions) that is the only place it is reported.

The home state, however, does not automatically check the registry.  Usually it is only checked if some license action occurs in the home state such as renewal or a violation.  If they find the Michigan DUI conviction at this time then they will usually suspend your license.  But, a Michigan DUI conviction is not automatically found.  Various government agencies also check the NDR in some instances (FAA, USCG, etc.).

Upon a Michigan DUI conviction resulting in a suspension, most states will report that suspension to both the home state pursuant to authorization under the DLC, and also to the NDR.  You must be sure to clear the suspension in every state in which one exists before the home state will reinstate because they check the NDR when reinstatement is sought.

The NRVC is a uniform set of laws for handling tickets and failures to appear from state to state.  When a person gets a ticket in another state and doesn’t appear, the suspension is reported to the home state under the NVRC, and to the NDR.  The home state then suspends until the other suspension is clear.

The difference is that the suspensions are not automatically reported to the home state.  Often you can let an administrative suspension run in your state and the home state license remains active.  If you can then use a top DUI lawyer to beat the charge in your state you can clear the administrative issue and the home state is none the wiser.  There are other permutations, but that is a common one.

Using this Information:

What is also clear from this is that three things must happen before the out-of-state conviction results in the in-state sanction.

1. First, Michigan must in some way report the conviction;
2. Second, the conviction must be observed and recognized as “substantially similar” by the home state; and
3. Third, the home state must therefore impose a sanction.

Because of the complexity of the out-of-state licensing issues, you are well advised to retain a top DUI lawyer to help you understand the consequences of a conviction.  Without such information, a plea of guilty can never be totally “knowing and understanding,” It is also true that without such information you can never properly access the risks associated with the decision to proceed to trial.

One final thought.  If your Michigan license is “restricted” this is really a suspended license with restricted driver license privileges.  Don’t think that because your “Michigan” license was “restricted” you can avoid sanctions in your home state.

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!

Mr. Barone would like to the thank Wayne from Maine, one of Maine’s top DUI lawyers, for his assistance with this article.