Find Michigan DUI Lawyer | Violation of Breath Testing Adminstrative Rules Might Lead to Suppression of Results

by baronedefensefirm on March 1, 2011

Michigan DataMaster

The Michigan administrative rules for breath testing require that the breath test operator in a drunk driving case observe the suspect continuously for 15 minutes prior to administering the breath test.

The reason the 15 minute rule exists is because it takes about 15 minutes for mouth alcohol to evaporate.  If mouth alcohol exists then the result is likely to be a falsely elevated breath test result.  This is because the breath test machine is measuring mouth alcohol rather than breath alcohol.[i]

In theory, the administrative rules were promulgated to ensure the integrity of the breath testing.  In a science journal article written by Dr. K. M. Dubowski[ii]the four critical safeguard for breath testing are discussed.  In this article Dr. Dubowski indicates that there are four necessary scientific safeguards for breath testing (1) a pretest deprivation-observation period of at least 15 minutes, (2) a blank test, (3) analysis of at least two separate consecutive breath samples, and (4) an appropriate control test to accompany each subject test. [emphasis supplied].

This position is supported by several cases in Michigan including the People vs. Boughner, where a 35 minute videotape of the defendant showed that the operator of the Breathalyzer machine observed the defendant for no more than 8 minutes before the test was given.  The Boughner court concluded that the administrative rule had certainly been violated, and suppressed the results.[iii] Other Michigan cases[iv] have held that compliance with AC, R325.2655 (1)(e) is critical for an accurate test, and that failure to comply should result in suppression of the test results.

Another Michigan case[v]addressed the question “what is the proper observation period before administering the evidentiary breath test.”  Here the arresting officer testified that the defendant was in his presence for more than the required 15 minutes, but that at times the defendant was only in his peripheral vision.  In this case the court suppressed the test results after reviewing the videotape recording.  This tape showed, contrary to the police officer’s testimony, that there was a two minute period when the officer had his back to the defendant.  Because this “non-observation” was immediately before the test was administered, the court found that a 15 minute observation period was lacking.  In suppressing the test results the court specifically rejected the prosecutor’s argument that compliance with AC, R 325.2655(1)(e) only goes to the weight of the breath test results and not to the admissibility thereof.

However, there has been an attempt to largely eviscerate the 15 minute observation rule, and this attempt is clearly demonstrated by a review of the “new” administrative rules as well as by recent (albeit unpublished) case law.  The result of this rule and of these cases is that police officers can now violate the 15 minute rule with impunity.  This certainly can have a significant impact on the reliabily of breath tests in drunk driving cases, and can result in a wrongful conviction for DUI.

The new administrative rule states in part as follows:

Breaks in the observation lasting only a few seconds do not invalidate the observation if the operator can reasonably determine that the subject did not smoke, regurgitate, or place anything in his or her mouth during the break in the observation.

Although it would seem logical that if the drafters decided to be this specific in say partial breaks are not a violation, then the opposite interpretation is also true; i.e, that breaks in the observation period lasting more than a few seconds do invalidate the observation period.


Michigan DataMaster

Unfortunately, some recent Michigan DUI cases have come to the opposite conclusion.  For example, in the case of People v Kneisler[vi] the court stated that the results of the breathalyzer test were reliable and should not have been suppressed where the 15-minute observation rule was technically violated, but suppression of the test results was not the appropriate remedy, and People v. Mix[vii], which held that although the officer did not fully comply with the 15 minute observation period requirement,  he observed the defendant for approximately 9-10 minutes during which time there was nothing that led the officer to believe that the defendant had anything in his mouth, vomited, ate or drank. Accordingly, the officer’s failure to follow the rule was harmless error: and the trial court properly determined that suppression was not warranted.

Despite all this, it is still important to watch the videotape of the breath test being administered and for DUI defense lawyers to always raise the argument and ask for an evidentiary hearing.  This is because there are still a variety of published cases that have favorable language for the defense, and which stand for the following rules of law:

  1. The administrative rules with respect to the administration of Datamaster tests indicates that their purpose is to ensure the accuracy of those tests. Failure to meet any of the foundational requirements will preclude the use of the test results.[viii]
  2. In order for chemical test results to be admissible the test results must be both relevant and reliable.[ix]
  3. The rules of statutory construction apply to the interpretation of the administrative rules.  Thus, meaning should be given to every word of a rule, and no word should be treated as surplusage or rendered nugatory if at all possible.[x]
  4. If the language of the rule is clear and unambiguous, additional judicial construction is neither necessary nor permitted, and the language must be applied as written.[xi]
  5. The administrative rules regarding the administration of the DataMaster were adopted pursuant to statutory authority [and therefore] have the force and effect of law.[xii]
  6. When the rules regarding Datamaster tests have not been complied with, the accuracy of those tests is considered sufficiently questionable so as to preclude the test results from being admitted into evidence.[xiii]

If you were arrested in Michigan for drunk driving and took a breath test, please contact the Barone Defense Firm today for your FREE case evaluation.

We will discuss with you whether or not the breath test rules were violated in your case and how this fact can be used to help obtain a great result.


[i] A theory of breath testing is that the breath from the deep lungs is thought to be at equilibrium with blood alcohol.  This theory disregards somewhat the idea of partition ratio.  Some scientists also believe that this model of breath testing is flawed.


[ii] Quality Assurance in Breath Alcohol Analysis, 18 Journal of Analytical Toxicology 306-311 (1994),

[iii] 209 Mich. App. 397 (1995)

[iv] People vs. Willis, 180 Mich. App. 31 (1989).

[v] People vs. Andreason, 1997 WL 33331014 (Mich App Nov. 21, 1997),

[vi] Docket No. 262384, (unpublished January 9, 2007)

[vii] Docket No. 282948 (unpublished  May 14, 2009)

[viii]People v. Tipolt, 198 Mich. App. 44, 46; 497 N.W.2d 198 (1993). (citations omitted); People v. Willis, 180 Mich. App. 31, 35; 446 N.W.2d 562 (1989).

[ix] People v Wager, 460 Mich. 118,126; 594 NW2d 487 (1999).

[x]People v Fosnaugh, 248 Mich. App 444, 451; 639 NW2d 587 (2001).

[xi] Camden v Kaufman, 240 Mich. App. 389, 395; 613 NW2d 335 (2000).

[xii] Id. at 35.

[xiii]People v. Boughner, 209 Mich. App. 397, 398-399; 531 N.W.2d 746 (1995).


This post was written by...

– who has written 204 posts on .

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

{ 4 comments… read them below or add one }

William Maze December 2, 2009 at 1:34 am

Mr. Barone,

I believe you have a typo. It is actually People v Mix (not Nix). And that is a very strange opinion. Mix pertains to a motion to suppress a PBT but the Court of Appeals opted to use the evidential rules regarding the Datamaster instead of the preliminary breath testing rules. In footnote 3, they make this clear where they opine, "In his brief on appeal, defendant incorrectly cites 1994 AACS, R 325.2655(2)(b), which also has a 15-minute requirement but does not require the officer to actually observe defendant." The panel used the wrong rule, and yet they explicitly "corrected" the defendant. Amazing!

It is downright scary how some judges do not understand how breath testing works or the rudimentary rules regarding administration of these breath tests.

William Maze


pbarone December 2, 2009 at 2:06 am

Re: Michigan DUI Help – New comment requires moderation on: Violation of Breath Testing Adminstrative Rules Might Lead to Suppression of Results



Mass. DUI Lawyer December 8, 2009 at 10:18 pm

Like Michigan, Massachusetts also has a 15 minute observation period, the purpose of which is to insure that the subject does not take anything orally or smoke and is not burping or hiccoughing. In Commonwealth v. Pierre, 72 Mass. App. Ct. 230, 231-232 (2008), the court ruled affirmed that “[t]he purpose of the fifteen-minute waiting period is to ensure that the defendant has not brought any substance into his mouth, such as food, drink, or regurgitation…that would have had a contaminating impact on the accuracy of the results, and to permit a sufficient lapse in time to allow such possible contaminants to clear.”

In order for a test to be valid, there should be no breaks in the observation period. In my opinion, anything less would invalidate the results.

Attorney Brian E. Simoneau


bad credit loans December 29, 2009 at 7:29 pm

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