In Michigan, if a Datamaster chemical test is offered by the police, current Michigan law states that before administering the Datamaster, there must be a 15-minute waiting period of observation. The observation time is to ensure that the person does not smoke, throw up or put anything in their mouth. If any of these three occur then the result of the test could, and likely is tainted. Because cops and prosecutors don’t like to have evidence suppressed this rule was created, but not always followed.
When I first take on a case, one of the first things that I look at is the evidence ticket from the Datamaster. I look for the start observation time and the time of the first sample provided. If there is not 15-minutes built in then the results are ripe for suppression. Along with the 15-minutes themselves, there also must be “observation” of my client. Recent case law has expanded what observation means; current cases say that the observer can look away for a moment, and the observation can be shared by multiple officers. Although the interpretation of the rules have expanded, I see many cases where the officers still lack compliance and we’re able to challenge the results. The only way I get my clients to the point of challenging the observation period is by using the information gathering stage (officially known as discovery). The most helpful piece of information is the booking video, which should capture my client, where he/she is sitting, who if anyone is around them, and what they are doing during this time; most importantly making sure that the times line up correctly. I’ve had a clock on the wall, the time on the video and the time on the evidence ticket all vary for observation and the test itself. Now this could have many explanations, but the one I go with, is that something isn’t right, and my client should not be prosecuted based on such questionable evidence, and we move for suppression. When arrested for a DUI offense, the arresting officer may also be the officer who operates the Datamaster chemical test. This is usually a smooth transition and simplifies the prosecutor’s case for a jury or judge. It does become an issue with the officer’s license to operate the machine is non-existent.
The first thing we do is check the operator’s card to see what class operator they are; this can range from class II, IIIA, IIB, IVA or IVB. The weekly test is usually performed locally by a resident Datamaster operator, while the 120-day calibrations must be done by a Class IV operator. If for some reason the operator is not qualified then the results are sure to be suppressed due to lack of following the administrative rules. This may or may not require a motion before the court, or a prosecutor will common sense would verify the lack of qualifications and move to dismiss the case. In the alternative the prosecutor may decide to go forward without the test results, but that would be an uphill battle to rely simply on officer observations and questionable field sobriety tests. In Michigan, a person arrested for a DUI offense must be read their statutory chemical test rights by the police officer. The rights are listed under MCL 257.625a(6)(b) and the chemical test can either be blood, breath or urine. This test will determine the presence and the amount of alcohol, controlled substance or both.
Because the results of a chemical test are admissible in court, these rights must be adhered to and administered properly. If not, the implied consent law does not kick in, and the test results may not be admissible against the Defendant. Because most officers will simply read word for word from the chemical test form paperwork, it is rare to find a case where the reads were not read. It is important to review and audio or video from the case, which can help sort out the status of the rights, and if they were read correctly. If there were not read, or not complete in their reading, a motion to suppress the chemical test results would be warranted, and likely granted. |
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