Many clients have asked me in the past if they were entitled to seek legal counsel when making the decision whether or not to take a breath or blood test - it would make sense that someone should have the proper legal advice when making such a big decision, but the law doesn't necessarily agree with that common sense.
In the context of a criminal prosecution, Michigan courts have long held that the defendant has no right to counsel before or during a police-administered chemical test inasmuch as the testing procedure is not considered a critical stage in the criminal proceedings.
The Holmberg case did recognize that the “more commendable” police practice would be to allow an individual a phone call to counsel before administering the chemical test.
Significantly, in the civil context of the implied consent law, the court of appeals has ruled that, when the police arbitrarily deny an individual an opportunity to telephone his or her counsel before taking a breath test, the individual’s resulting refusal to take a Breathalyzer test was reasonable and the individual’s license should therefore not be suspended under the implied consent law.
Ultimately, the issue is whether the driver’s refusal was reasonable based on the totality of circumstances existing at the time of the refusal. The argument to be made is that the client's refusal to submit to a chemical test was reasonable where the client was confused about the chemical test rights and the refusal was prompted by a coercive and arbitrary police policy or decision not to allow a telephone call to counsel to alleviate the confusion.
In Michigan, a prosecutor will most likely have a BAC reading to prosecute a drunk driving case; the majority of the time, it will be blood or breath. Although there is a print out of the result, this alone is not admissible at a trial against the charged party. A prosecutor must admit the evidence into that trial following a very specific requirement list.
Certain prerequisites must be met for chemical test results to be admissible. A prosecutor must demonstrate the following:
Although the prosecutor must demonstrate that proper procedures were followed, he or she is not required to affirmatively show compliance with every rule and regulation regarding breath tests and the qualifications of the person administering the test are determined by testimony that he or she is certified by the Michigan State Police to administer such tests.
Defense lawyers always run into the issue that the DataMaster operator is only supposed to be an operator, and he or she does not claim to be an expert on the workings of the instrument or on the scientific principles involved. Operators like to avoid questions, play dumb and try to pass the responsibility off to the machine itself; if approached correctly, this is VERY helpful for the case. A jury will be faced with the question of trusting a machine where the person operating it is simply throwing their hands up in the air and say "I don't know, but I just know".
To prove the reliability of the testing device, however, the operator should be able to testify that the instrument was tested weekly by a certified DataMaster operator and inspected by the Michigan State Police at least once every 120 days, using controlled test samples furnished by the state police. This testimony is a sufficient foundation for admitting test results. Alternatively, each facility with a DataMaster DMT should have a keeper of records who can testify to the weekly accuracy checks and 120-day inspections.
In Michigan, police officers use the DataMaster for chemical breath testing. This device is a electronic device, which is subject to interference with other electronic devices. In fact, the more sophisticated a piece of equipment is, the greater the risk of radio frequency interference The DataMaster in Michigan is equipped with a sensor that is designed to determine whether there is radio frequency interference, but Michigan does not publish these guidelines for the general public. There are also no administrative rules on the testing of the machine for this radio frequency.
In Michigan, the police should be testing for background radio frequency from security radios, base radio communications from the police station itself, portable transmitter such as handheld police radio and mobile transmissions from patrol cars and EMS
The DataMaster in Michigan will do a one-time test to determine the presence of frequency yet will not continue to test for it while the breath test is being administered. It's common sense than radio frequency will change from second to second, minute to minute and new frequencies may appear during the test; the machine does not detect beyond this minute. This radio interference can impact the BAC reading, which can be the difference between under and over the legal limit.
This is like running all tests of an airplane for one minute, taking the plane up in the air then no longer monitoring for issues. This is simply dangerous! When your freedom and ability to drive is on the line, do you really think this sort of testing is fair? Other states use shielding devices on their machines to prevent this issue, Michigan does not!
If you believe your BAC number is inflated, and it just doesn't make sense to you, it's possible your result was impacted by radio frequency interference, and I'd like to discuss your case with you.
In Michigan, the DataMaster operator is trained that certain chemicals other than alcohol can impact a breath test reading.
These substances are ethyl ether, isopropyl alcohol, methyl (wood) alcohol, paraldehyde, acetone, and trichloroethylene. The DataMaster training manuals do not actually state, however, that methyl alcohol and paraldehyde will affect the breath test readings, when in fact they do. Other substances, such as onion or garlic, will not affect the reading.
These two forms of alcohol actually have a longer reaction time than regular alcohol, which most people are quite familiar with. The presence of one of these types of alcohol would impact the DataMaster results.
Blood Testing in a Michigan Drunk Driving Case - Will my case be dismissed if the rule aren't followed?
In Michigan, we're beginning to see more and more blood testing rather than use of the DataMaster. If someone is arrested and refuses the a breath test, the police officer will then seek a warrant for a blood test. This also means that a one-year license suspension will be triggered, and it's imperative to review the Implied Consent Law. These warrants are almost always granted by judges around the state.
You may also be taken for a blood draw if you've been involved in an accident or there is an allegation of a serious injury or death to another. Police departments will regularly admit that a blood test is more accurate, so these tests are done in the most serious cases. If the police begin with the blood test, the Implied Consent Law will not be applicable.
In order for the prosecutor to admit blood results into evidence at a DUI trial in Michigan, the prosecutor must produce the person who drew the blood, and this witness must confirm the following:
- the blood sample was taken in a timely manner;
- the sample was from a particular person;
- the sample was taken by an authorized licensed physician, a medical technologist, or a registered nurse designated by a licensed physician;
- sterilized instruments were used;
- the sample was properly preserved and labeled;
- proper methods of transportation were used;
- procedures used in the test sample withdrawal were proper; and
- the identity of the supervising person, under whose care the sample was withdrawn, was established.
In Michigan, a proper DUI blood test test procedure requires use of a control sample, a test sample, and two analyses of the test sample. A test sample is a sample of the substance at a known concentration, such as a known ethyl alcohol concentration in blood. A control sample contains all of the substances normally found in the matter to be tested, except for the substance of interest, ethyl alcohol. The purpose of the control sample is to demonstrate that the test instrument will not show a result based on substances common in the matter tested, thus giving a false result. For blood, the control sample is blood without alcohol.
Blood testing can be conducted with three different methods: Dichromate procedure, enzymatic procedure or gas chromatography. Gas chromatography is the method currently used in Michigan for testing samples of blood for cases involving operating while intoxicated and operating with the presence of a controlled substance.
Whenever blood is drawn in a DUI case, your attorney should demand the sample of the withdrawn blood along with all the associated paperwork, which provides valuable information, which could be fruitful on cross-examination. The request for a sample must be demanded from the state police lab within 30 days of the date the state completed its test. The state police lab may discard biological specimens 180 days after reporting its results. This second blood sample can be tested by an independent laboratory, but this should be done with caution; a second test can only strengthen the results of the first test, but could also cast doubt on the initial results.
In Michigan, a defendant has the right to an independent blood test after the police breath test or even the police blood test. If you have any concerns about the integrity of the test, you should consider having your own test conducted.
Moreover, if the police deny your client’s reasonable request for the independent blood test, the jury will receive an instruction that the police violated the defendant’s statutory right to get an independent test.
DUI Attorney & Former Prosecutor Jonathan Paul