Breath or Blood Test Mistakes

When we talk about “per se” laws or UBAL (Unlawful Bodily Alcohol Level), we are referring always to the results of a chemical test.  In Michigan we see breath in the majority of cases, but blood testing in drunk driving cases is becoming more common.

Like any scientific test, it is important for breath and blood test results to be accurate, precise and reliable.  At least in theory, there are administrative rules that apply to the collection of breath and blood testing, and their purpose is to assure reliability.

The administrative rules essentially cover two things, the handling of the equipment, for example calibration, to keep them working and measuring properly, and the collection of the sample. If it can be shown that the police did not follow these rules; then the results of the test can be called into question.  In some circumstances, the test results can be suppressed, or kept out of evidence altogether.

Relative to breath testing, it is essential that the administrative rules be reviewed and understood.  Regarding breath testing, the most import rules are:

Rule 3 (325.2653)  Equipment accuracy

1.      Verified for Accuracy – evidentiary breath testing equipment (changed for DMT to allow automatic testing) once per calendar week and be between .076 – .084.

2.      PBTs – one time per month.

3.      120 Day Inspections – class 4 operator must inspect every 120 days.

Rule 5 (R 325.2655)   Techniques and procedures.

1.      Requires Logs to be Kept

2.      Requires That Simulator /Alcohol Samples be Certified – The department shall certify  for use  those  lots  of  alcohol standards that are found to be proper in chemical composition.

3.      Requires 15 Minute Observation

4.      Requires Second Sample be Requested

5.      Requires 2 tests be Within Given Range

6.      Requires Truncation

7.      Requires Medical Care if Above .34

The best way to determine if problems have occurred is through the questionnaires, interview of your client and review of the videotapes.  Once a problem is discovered, it will necessary to file a motion and conduct an evidentiary hearing.

If a blood test was collected then there are no administrative rules as such, at least not like those involved in breath testing.  Instead, with blood testing there is a different outline to consider.  Defenses or problems may arise in any of the following areas:

Collection – Did the police properly aid in the collection of the blood, handle the blood tubes properly, and use the proper equipment?  Did the person drawing the blood probably swab the arm, insert the needle, use the correct needle, withdraw the correct amount of blood, handle the blood tubes properly and was he/she properly qualified?

Transportation – How was the blood handled after it was collect?  Where did the blood kit go, and ultimately how did the blood get to the lab for testing?

Storage – Under what conditions was the blood stored both before and after it go to the state lab?

Preparation of Sample – Was the blood properly prepared for testing?  Did the analyst use the appropriate equipment and was this equipment properly calibrated?

Testing – How was the blood tested?  Was the chromatograph used to test the blood properly maintained and in good working order?  Where any errors made during the testing?  What is the uncertainty budget assigned to the equipment?

Reporting – How was the result reported, and was there any manipulation of the results to fit a prescribed method range?

It should be obvious that in order of there to be any real hope of meaningful challenge of either breath or blood testing the attorney must have a comprehensive understanding of both the administrate rules and applicable law and just as importantly, of the scientific principles that underlie the tests used.