DUI Survival Guide - How to Beat the Datamaster Breath Test
Recently, the DataMaster DMT was introduced for chemical breath tests in Michigan. The machine relies upon infrared spectroscopy and secret algorithms that the manufacturer closely guards. This new machine was put in place by the police and prosecutor to streamline many of the pitfalls of the old machine, which were frequently challenged.
Here's how the machine works, and how it can be defeated if approached the right way by an attorney.
The Datamaster operation requires that the testing officer observe the subject for a minimum of 15 minutes before administering the evidential breath test to ensure that the subject has not smoked, regurgitated, or placed anything in his or her mouth.
The DMT machine requires the officer to manually enter the observation time; if it's less than 15 minutes, it's certainly an avenue to attack, and it's also important to bring up that the DMT comes with the option of a button which would start the 15-minutes then lock out the machine for those 15-minutes so the time-frame MUST be adhered to, but the State of Michigan chose not to purchase this safeguard.
After entering the start observation time and the subject’s information, the officer enters his or her identifying information. It's important to FOIA the officer's training history from the Michigan Commission on Law Enforcement Standards (MCOLES) to ensure the officer is qualified to administer the DMT. The officer training is also ripe for cross-examination, especially for a jury who would be shocked to hear how little training, and how low the standards are to operate this machine.
Once the information is entered, the officer presses “OK” and the DMT takes over from there. The first thing the DMT does is zero itself by sucking in ambient air from the room, which theoretically purges the machine with clean room air. It then runs a blank test to ensure that the DMT deems the ambient air clean of ethyl alcohol, and then it runs an internal standard check by inserting a quartz plate with a known infrared absorption value. According to the DMT instruction manual,
Each DATAMASTER DMT is programmed to retain in memory the exact infrared absorption value of this quartz standard. The instrument measures the absorption of the quartz plate and compares this measured value with the value obtained at calibration. The two values must agree within prescribed limits or the operation will be aborted due to calibration error.
Unfortunately, Michigan’s DMTs do not reveal what these values are as the MSP has chosen to turn off the feature that would provide a numerical readout of the internal standard and of how much the machine varied from that standard. Michigan’s DMTs will simply state that the standard was “verified.” Also this is not required by the law, a jury would certainly find it odd, that the State of Michigan again had an opportunity to put a safeguard into place, but chose not to do so.
After the pretest checks, the DMT will then display “Please Blow.” The officer must place a new, previously unwrapped mouth piece into the heated breath tube and tell the subject, “‘Place your mouth on the mouthpiece and blow long and steady into the tube until I tell you to stop.’” If the officer does not use a new, unwrapped mouth piece, that's a viable path to attack the test; if two tests are given, the officer MUST replace the first tube with a second one, but they usually do not do so.
After the below, there is an audible beep, and the officer can watch the progress of the test on the “breath volume bar.” A subject is supposed to continue blowing until he or she is out of air, although the DMT should register a result after six continuous seconds of blowing. One hundred twenty seconds after the first test sequence is completed, the DMT will go through the purging–blank test–internal standard verification sequence and then a second sample will be requested in the same manner as the first test sequence.
The Administrative Code Rules require the officer to offer a second DMT test to verify the results of the first test sequence. However, after an individual submits to the first test sequence, it is not considered an implied consent act violation to refuse the second test sequence. If I had a chance to sit on my client's shoulder at this point, I would tell them to refuse the second test, but I've never had a client know to do this, because they don't need to know this option by law.
However, if the first two test results are not within the preset tolerances of each other, the DMT will automatically request a third sample, and the sequence will be the same as the first two sequences, including the provision of a new mouthpiece. The DMT has a built in variance, which is fruitful at trial, and could make the difference on a close call on the 0.08 or 0.17 thresholds.
The variance can range from 0.01 higher or lower on a BAC up to 0.14, and potentially up to 0.04 on a number of 0.35, which at that point, a variation may not matter, but it is an acknowledgement that the machine is not perfect, and it has a margin of error, up to 26.67 percent, which is kind of shocking.
It's important to request all testing material on the DMT machine as the machine is tested on a regular basis, and those logs are made available in cases; a machine is deemed acceptable as long as it falls between .076–.084 percent, a range of +/− 5 percent. A fruitful area of questioning is when you have a BAC result at a different level; essentially, was the machine tested to accurately test a sample of 0.17? Well no would be the answer, and that makes a difference in the eyes of a jury member.
Former NYC & Michigan Prosecutor