As a former DUI prosecutor, I worked on 1000's of cases; the main piece of evidence was typically a chemical test, which was either a blood draw or a breath sample. In Michigan, the breath sample is collected with the Datamaster machine. Under Michigan law, the trier of fact is allowed to assume that the blood alcohol content result collected via chemical test was the same as when the driver was operating the vehicle.
As a former prosecutor my favorite lines were "over the legal limit" "more than double the legal limit" "he/she failed the test". I would push and push that chemical test being over the legal limit - what else was there to consider, the person was guilty! Anything that silly defense lawyer tells you is just smoke and mirrors - there was a test, and they failed it, end of story, find them guilty.
Many prosecutors try to over-complicate the issue and act as if they need to defend the chemical test number - the more complicated you make it, the less a jury focuses on the "failed test" concept. As a prosecutor, I did the very opposite - make it as simple as possible - juries don't want to think too much, and if you spend so much time defending something, they lose confidence in the issue and question the reliability of the evidence.
As a former prosecutor I had a different view of the blood vs breath results. In my experience, a blood test is considered to be more reliable by the "criminal law community", because well it's tested at the Michigan State Police lab, and there's supposedly less variables that can impact the result, because it is coming directly from your body. The person testifying about the result (lab tech) is also supposedly more knowledgeable and a better witness than a police officer who does the Datamaster machine.
Both prosecutors and defense lawyers tend to give the blood result more weight and if it's over the legal limit for an OWI (0.08) or Super Drunk (0.17) then there's less incentive to challenge it. I completely disagree with this perception, and bring this mindset to my criminal defense practice. Here's why:
1. In Michigan, let's say the police stop my client at 2 am. A Datamaster result would usually happen within the hour of this traffic stop, and makes for a better argument when you're telling a jury to believe the BAC level is the same as when the person was driving the car. A blood test in contrast happens hours later at the hospital, or you have to wait for someone to come to the jail to draw the blood. Typically double or triple the time goes by - a good defense lawyer will jump on that argument.
2. Once the blood is drawn, it's supposed to be sealed in a tube for testing, but that sealed tube sits around and is transported to the lab over the course of a few days. Just picture that sealed blood sample bouncing around the mail truck as it heads to Lansing in an uncontrolled environment. Throw in freezing temperatures of winter or 95 degrees in August, and that sample is compromised. The best is when the lab tech brags about the sample being stored in a controlled environment prior to testing (but after bouncing around the mail truck in 95 degree weather for 3 days) - all I have to say is REASONABLE DOUBT.
3. It's a pain to get the lab tech to come to court to testify and limits your flexibility to set the case for trial. It's so much easier to have the police officer available to come in and testify.
Sure a Datamaster has it's faults, but cops are trained not to know enough to be challenged. They have a procedure and if they follow it, that's it. They are not required to know how the machine works or why it does X, Y and Z but rather to follow steps. If the jury likes the cop and they believe he followed the steps then they will probably buy into the result and not find reasonable doubt. There's also usually two tests (not required), but the second result can confirm the first result vs a single blood test result.
As a criminal defense lawyer, I find that prosecutors are more confident in the blood draw, but at trial those are easier to challenge. And the goal is not to show the test is wrong, faulty or an error, but rather just raise enough doubt to get a not-guilty verdict, and the door is wide open on the blood test.
With the Datamaster, I am looking for numbers close to the limits of 0.08 and 0.17 as there are built in margins of error listed in the training manual for the operator. I am also looking for a police officer who is going to be chatty and give me open windows. Officers are trained not to discuss how the machine works or WHAT IF's but human nature makes most officers answer questions and be open to possibilities. If the officer answers YES IT"S POSSIBLE to enough questions then that's my reasonable doubt. After all it's a machine and the person pressing the buttons doesn't know how it works, why should be believe the result?
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.
To be clear, the "second" - refusing the the test altogether would subject you to the Implied Consent law in Michigan.
If you decide to take the Datamaster and avoid the Implied consent issue kicking in, there is nothing in the law that says you need to blow a second time as a confirming sample. A second test only confirms the accuracy of the first test, and it could be easier to challenge the Datamaster accuracy with only one result vs two results.
In Michigan, police agencies now use the Datamaster DMT for breath testing, which has replaced the BAC Datamaster. The new Datamaster uses infrared spectroscopy, which captures a sample of breath from the client. This sample may contain alcohol, which absorb infrared energy.
A known sample of infrared light is sent through the chamber, and if any ethanol is present, it absorbs that infrared light. The remaining light is measured by a detector; this “loss” of energy is then measured and you get an alcohol reading. This measurement is only as accurate as the device and the procedure allows.
Before reaching this point, the machine goes through a number of steps including purging where the internal plumbing is cleansed of any residual substances from prior samples. If it is clear, there will be a .00 reading displayed. The machine will then do it’s ambient zeroing, which an interference filter is inserted in the infrared path to check for contaminants in the ambient air sample. These filters are used to separate ethanol from potential interference such as acetone.
The machine then does a blank test and a .000 will appear on the display if no contaminants are detected. The final step is the internal standard check where a quartz filter is dropped into the infrared light source path. The filter absorbs infrared energy which is a known amount, determined during the calibration of the machine.
The infrared detector receives a reduced amount of infrared energy that was transmitted by the infrared source. The reduced intensity is evaluated by the microprocessor in the Datamaster, and a predetermined result is achieved. This step evaluates the machine’s electronic system, signal analysis, and proceeding system to determine that everything is working properly.
While all of these precautions sound impressive, they mean nothing if the machine doesn’t alert the operator that some of these components that do the internal checks are not working properly.
Datamaster operators will testify under oath that there is a hole in the assumption that things are working properly, because they are not trained on anything other than pressing buttons, and rely on the machine itself to tell them that is working properly. This is like going to the doctor for a medical opinion, then coming back two minutes later for a second opinion, there is no true checks and balance system, because the machine checks itself.
Datamaster Michigan Substance other than Ethyl Alcohol impacting BAC reading - Move for suppression in a DUI case
The Datamaster can be impacted by many factors, and another one of these would be various substances in the test-takers body. Ethyl grain alcohol is what is against the law, and what the Datamaster is looking for, but it’s very possible that substances such as ethyl ether, isopropyl alcohol, methyl alcohol, paraldehyde, acetone or trichloroethylene could lead to a misleading result.
Datamaster operators are not properly trained or knowledgeable to detect or factor in the presence of stimulants, depressants, tranquilizers or hallucinogens, all of which could impact the test result. In DUI cases in Michigan, perception is everything. Even if a client didn’t use any of these, it doesn’t matter. If the Datamaster operator acknowledges that these could impact the result, and they actually don’t know of their status for my client, then this uncertainty should be enough to discredit the Datamaster result. The standard of proof is beyond a reasonable doubt, and that lack of certainty is a good reason to doubt, and acquit.
Reasonable time Datamaster Michigan - What is the rule and are there exceptions? Can I get my Datamaster result suppressed in Michigan for a DUI?
In drunk driving cases, there will always be a time where a cop or witness observe the Defendant driving a car. This moment in time establishes when someone was driving, which can then be evaluated with the time that the chemical test was performed.
Recent case law eliminated the “reasonable period of time” rule in Michigan, and said the above scenario is enough to determine how much weight to give the result rather than to have it suppressed via pretrial motion by a judge. If 60 minutes pass between the first point of observed operation or 3 hours, that’s for a jury to decide, and not a judge, which has lead to more trials.
There is a remaining exception to the elimination of the reasonable period of time, which is the single-car accident, because the operation time cannot be determined, because there is no eye-witness to the driving. If someone hits a deer, and there is nobody around to determine the time, then we have no idea when the driver last operated. Unless the Defendant provides this information then there is no way to know, and courts have said under this scenario it is possible for a judge to determine that such an extensive or unknown time delay could make the test result irrelevant, and suppressible before getting in front of a jury at trial. If my client was involved in a single-car accident, and the last moment of operation cannot be determined then we may move for suppression of the results due to a lack of reasonable time period.
This technique puts the burden on the prosecutor to show the test is relevant by establishing operation. If they can’t do that then the tests are simply not reliable; my client could have been passed out in his car for three hours before someone else gets eyes on my client.
Datamaster Michigan Challenge the Results at Trial - Machine Must be tested, calibrated and working properly or the results will be suppressed
In Michigan the Datamaster machine must be maintained and tested properly in order for it to work properly. The machine determines the fate of tens of thousands of people in Michigan each year, and the machine can’t be treated like your car.
Sticking with the car analogy, law enforcement must always rotate their tires, get scheduled oil changes and always be operating within the most stringent guidelines; essentially getting the maximum gas mileage and performance at all times. If there is a lapse in these guidelines then the test is not reliable, and should be suppressed.
In Michigan, the rules say a class II, IIIA, IIIB or IVB operator must verify every machine on weekly basis using a vapor solution provided by Michigan State Police or using a compressed alcohol gas device that delivers exactly .080 grams of alcohol per 210 liters of vapor. Based on this deliverance, the machine MUST record a result of .076 to .084. Recent case law has ruled that the weekly compliance rule will not automatically suppress the result, but rather it will factor into the weight of the evidence for a judge or jury to determine.
When I get a case, I order the Datamaster logs, and see how the machine was testing before and after my client’s test was performed. Courts have ruled that attack of the logs is permissible and the other test results are admissible as a factor for a judge or jury to consider.
Along with the weekly test, the Datamaster needs to be inspected and verified for accuracy and cleanliness every 120 days by a class IVB operator or a representative from the manufacturer.
If the rules were not followed, or the machine is providing a number outside of the range then it should be attacked. You have two swings at this issue; pre-trial motion requesting that the judge suppress the results, and/or at trial where you can challenge the weight of the results, but they’d be admitted for a judge or jury to hear.
These techniques may require an expert to educate a judge or jury on what weight if any should be attributed to the results. In addition to the overall weight, it may be possible to use the results to one’s advantage.
If I am working on a case where my client recorded a 0.08 or even 0.09 on the Datamaster, and after looking at the logs, the machine is “testing high” at 0.084, we know the machine is turning the 0.08 into a higher number, which helps me argue that it’s possible, if not likely that my client actually could have blown a 0.076, but was only elevated by the margin of error allowed by the machine.
Finally, another method I like to point out to a jury is the machine being tested with a 0.08 solution. That’s probably a good idea for a case where my client blew a 0.08, as the jury knows that number could actually be 0.076 or 0.084, but if my client allegedly blew a 0.18, the machine was not tested for accuracy for what my client actually blew. This is like hitting the popcorn button on your microwave for everything. Would you hit the popcorn button to reheat iced cold chicken? No, and that’s how we attack the test result.
In Michigan, police officers use the Datamaster machine to test breath samples; this device is electronic and subject to the same interference as other devices that generate electrical power. One kind of interference that is possible is radio frequency interference or RFI.
Although the machine apparently has a built in sensor, which is designed to seek and identify this sort of interference, there is no guideline or information about how sensitive the sensor actually is during the tests. Just like a metal detector; some may pick up the metal on your belt, and some may not, but we all know there is metal being undetected. The same holds true for radio interference; we know there are radios in and around a police station, potentially even right next to the device if the officer has one; if the sensor doesn’t go off, does that actually mean something? It’s my position that there is always the possibility of some radio interference, even if the sensor does not pick it up.
In my experience there are at least five types of radio interference that must be detected, many which may not be picked up with a low sensitivity sensor.
It’s imperative to test for radio interference from mobile transmitters from patrol cars, ambulances and fire trucks, even news trucks driving around and private citizens using them. It must test for military and private security radio, base radio communication from the police station itself, portable transmitters from handheld police radios and a scenario where all of them are acting in concert.
It’s not a stretch to have a situation where the police station is surrounded by private citizens transmitting radio signals, military operations being conducted in the airspace, each cop having his own radio on his person, multiple police cars, and emergency vehicles transmitting and the police station itself (where the test is being conducted) sending out various signals to those same cars and officers.
Many prosecutors, police officers and judges roll their eyes at radio interference, and I really don’t quite understand why? It’s likely that the attorney presenting it moved on too quick without having the witness acknowledge all the possibilities, and the fact that we have no idea how sensitive the device actually is or isn’t.
Another problem area, which goes unchallenged is the machine only conducts a test at the very beginning; some of these tests take 10 to 15 minutes. Radio waves come and go, especially at a busy police station, and to simply ignore further tests is absurd. Some states have acknowledged this gap by placing shields on the device, but Michigan has not done so, which is an excellent issue to put in front of a jury to challenge the test results. In my view, until a shield is adopted by Michigan then no Datamaster test is actually fully reliable; how can a jury believe beyond a reasonable doubt that the test was accurate when a neighboring state doubted their same tests, and added the extra precaution.
Challenge the Datamaster in Michigan - Must follow the 15 minute observation rule for the result to be admissible for a DUI
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.
DUI Attorney & Former Prosecutor Jonathan Paul