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. One of the primary defense arguments in the past was that the breath test was not performed within a reasonable period after the time of the stop and that the test results should therefore be suppressed. However, in People v Wager, 460 Mich 118, 594 NW2d 487 (1999), the court overturned a quarter century of published precedents and ruled that there is no reasonable time requirement and that any delay goes to the weight of the evidence and not its admissibility.
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. How to Cross-Exam the Datamaster Operator to Create Reasonable Doubt in Your Michigan DUI Case2/22/2016
There's a trend in Michigan that DUI cases are not going to trial. The reason is most clients and attorneys will look at the BAC level, see that it's above the legal limit and run to plead guilty. Now there's always a time to cut the best deal on a DUI case, but not before a careful examination of your defense.
One of these defenses is attacking the BAC results by attacking the DataMaster with cross-examination of it's operator. Here is an example of an effective line of questioning: Why does your training manual want you to know whether my client had a temperature? Why does your manual want to know whether my client was taking medication? Why watch an individual for 15 minutes before the test? Why do you have 15-minute observation periods if the machine can detect mouth alcohol? How does the machine know the difference between air in the mouth and air in the lung? Is the alcohol in the upper lung different than in the lower lung? Is alcohol constant in the human body? How fast can a person’s blood alcohol go up? What does verified mean on the evidence ticket? What is the tolerance of the internal standard? How do radio frequency waves affect the test results? How often is the machine sensor tested for RFI? How sensitive is the RFI sensor? Why do the logs only reflect verification at .08 percent? Why not other levels, such as .15 percent or .20 percent? Based on the DataMaster’s results, what was my client’s BrAC at the time of the driving? Can you state beyond a reasonable doubt, based on the DataMaster’s result, that my client was above .08 percent BAC at the time of the driving? Can Body Temperature Impact my Datamaster BAC Result? Can it lead to suppression of evidence?2/22/2016
In Michigan, DataMaster operators are not trained much on body temperature and its impact on alcohol in the blood. In the human body, blood that is flowing in the capillaries of the lungs passes quite rapidly through the walls of the capillaries and alveoli into the deep lung air. The equilibrium formed is in the ratio of 1:2100—the same weight of alcohol is present in one milliliter of blood as in 2100 cubic centimeters of air.
The validity of this ratio depends on temperature, which for all persons is assumed to be 98.6˚ F (37˚ C) at the time of the test. The operators are not taught that the ratio 1:2100 represents an average value and that variations between individuals (body temperature among other things) are not considered sufficient to jeopardize the breath test results. The machine also assumes that everyone's body temperature is 93.2 degrees when it leaves the mouth into the machine. The DataMaster in Michigan assumes that everyone's body temperature is always 98.6 F, and applying common sense, this is not always true. If the body's temperature is not at this level, the DataMaster is not accurate. Further, the machine does not collect 2100 cc of air, but only 52.5 cc of heated air and thus is only approximately 1/40th of the usual sample size. So you're getting a result on the DataMaster that is not only subject to changes in body temperature, but also basing a reading off of 1/40th of the usual sample. This is like saying all 40 people like pizza, and only asking one person if they like pizza. DataMaster operators in Michigan are not taught that if a person has a higher than normal body temperature, the result is artificially higher than it should be. They are not taught that if a person has a higher than normal body temperature, the concentration of alcohol in the alveolar air will be increased. As a result, the DataMaster reading will be higher than it should be. You could have a blood result reading of 0.10, but in reality the number is significantly lower, which is the difference between under and over the legal limit. If you've been charged with a DUI and your BAC level is close to the legal limit, you may have a possible defense based on your body temperature not being "average" when the test was given. I look forward to discussing the merits of this type of defense in greater detail. |
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