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.
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:
- 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]
- In order for chemical test results to be admissible the test results must be both relevant and reliable.[ix]
- 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]
- 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]
- 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]
- 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).