Michigan Drunk Driving Breath/Blood Test

Number three of the most successful defenses on a drunk driving case are improper procedures relative to the collection of the chemical evidence, which in Michigan is almost always going to be either a breath test or a blood test.

Looking first at breath testing there are a variety of administrative rules that apply in the collection of the breath test.  If those rules are violated, you may have a basis to have the breath test thrown out.  The same is true with regard to blood testing.  Looking first at breath testing it’s important to understand that breath testing is a scientific test.  In order for it to have legitimacy there has to be certain safeguards to ensure the reliability of both the instrument itself, The Data Master, the breath testing device that we use in Michigan, as well as the maintenance of the equipment.  There really are two parts to it.

With regard to the maintenance what you will have in order to determine, whether or not the maintenance is appropriate, are the breath test logs, which of course you will get as part of your discovery.  You can look at those to make sure that the instrument itself was tested once per calendar week and tested to be within the range of .076 to .084 and that it was tested by a class 4 operator every 120 days.  Rarely, but in some instances, by looking at the logs themselves you will see either that the tests were not conducted in the appropriate timeframe or that the 120 day inspector didn’t come out.  What’s more likely to happen is that for some reason the actual log that would reflect what would happen is lost and can’t be retrieved. 

I’ve certainly had situations where the prosecutor has provided me with logs, doesn’t include the 120 day inspection and I have been able to convince the prosecutor on that basis to reduce the case to a non-alcohol reckless driving or careless driving, depending on the circumstances.  When you look at the logs it’s important to be determining whether or not the maintenance of the equipment was done properly.  Once you have looked at those items, then you’ll need to discuss with your client and review the video tape to determine whether or not the breath test itself was administered properly. 

The video tape of the booking room, where the breath test was actually conducted, is of critical importance in making this determination.  The police report will essentially be silent as to the manner in which the test itself was conducted.  By viewing the video tape you can see whether or not the test was actually administered in a proper way.  In order for you to really understand this issue, you will need to review and thoroughly understand the administrative rules, which are easily available on the internet.  As well as the training manual that you can obtain a copy of the training manual by asking the state police and they will send it to you, and it will be important for you to review and understand all of the information that are in those two documents:  the administrative rules as well as the training manual.

The training manual states specifically many of the things that the police officer is required to do in order to ensure accuracy.  For example, it describes the manner in which the mouth piece is to be placed on to the Data Master machine and the fact that the mouthpiece has to be replaced between blows.  It describes the manner in which the police officer is supposed to instruct the person to blow into the machine.  If you look at the video tape you can sometimes determine if those things did or did not occur.  You may also see that your client is doing something that may contaminate the breath test itself.  For example, you may see that the person is coughing, putting their hand to their mouth or even burping or refluxing in their mouth, things that can actually contaminate and have a significant impact on the test result.  If you are able to find those things then you can bring them in front of the judge and try and get the breath test suppressed. 

With regard to blood testing, blood testing is thought of as being much more mysterious and complex than a breath test.  I suppose in some ways it is.  With breath testing you’re defenses are really somewhat limited because the police officer brings your client in, your client blows into the machine, and the machine produces an evidence ticket.  There’s no actual collection of the sample and no transportation of the sample and so forth.  There is no chain of evidence.  It all happens very quickly at the police station itself.  Whereas with blood testing there are many more steps that need to be taken in order for the sample to be sound, intact, and for it to be tested properly. 

When looking at a blood test the first thing to determine is whether or not it was collected properly.  Did the police follow their training, and the rules that apply, in providing the blood test kit to the nurse that drew the blood?  Where was the kit stored, for example, before it was actually brought to the nurse?  Did the nurse handle the kit properly?  Did they prepare the arm properly?  Did they withdraw an appropriate amount of blood into the tube in a way that is scientifically sound?  Did they seal it in the kit properly?  Did the police officer say the right things and label the blood test tube in the right way?  Was the kit itself sealed the way that the police are supposed to seal it?  What happened to it after it was collected by the police?  Did they bring it right to the lab?

Probably not, they probably brought it back to the station and put it in a wire basket on the Sergeants desk where it sat for maybe a day or two until the Sergeant got back and processed it through the state mail.  Now we have a chain of evidence and storage issue.  You’re looking at the collection, the transportation, the storage, the testing (that is the preparation for testing at the State lab), did the lab analysts prepare the sample in the appropriate way using all of the right equipment with the proper calibration?  Did they run their blood testing machine properly?  Did they report the results in an appropriate way?

Each of these sub-categories is described in the materials for this lecture and you can download those from the website so that you can see specifically what I’m referring to.  It will give you an outline that you can use when evaluating a blood test case.  Looked at the right way, blood testing is actually a better case to defend than breath testing because you have all of these other avenues for a defense.  When you look at a test, don’t just look at the test results.  Look at all of the information that underlies the test result.  Maybe you have a defense that you can use to get the breath or blood test thrown out.  If you do that you’re in a much better position to get a deal from the prosecutor and certainly in a much better position to win your case at trial.

< Back to Video Library