As criminal defense attorneys, we see the panic that sets in when a person has been arrested for operating while intoxicated (OWI) and they are faced with the barrage of issues that can only come from such a complicated criminal charge.
Between dealing with the Michigan Secretary of State, the administrative process, required court dates, license suspension, criminal court hearings, the threat of punishment, constitutional issues, being treated unfairly by law enforcement, the length of the process, the associated costs, and the effect that a conviction will ultimately have on your personal life, an OWI charge in Michigan can be extremely overwhelming.
This is why you need the assistance of an experienced Michigan criminal defense lawyer whenever you have been charged with OWI. The Abood Law Firm has been practicing criminal law in Michigan for more than 60 years and can help you understand what you are facing and how best to deal with it
Michigan Laws are Complicated
If arrested for drunk driving in Michigan, you will be required to take a chemical test to determine your bodily alcohol content (BAC). If you refuse a test, six points will be added to your driver record and your license, or non-resident operating privilege, will be suspended for one year.
A suspension of a license, or non-resident operating privilege, is automatic for any refusal to submit to the test. This is a separate consequence from any subsequent convictions resulting from the traffic stop. If you are arrested a second time in seven years and again unreasonably refuse the test, six points will be a dded to your driver record and your license, or non-resident operating privilege, will be suspended for two years. If you refuse to take the test under the Implied Consent Law or if the test shows your BAC is 0.08 or more, your Michigan driver’s license will be destroyed by the officer and you will be issued a 625g paper permit to drive until your case is resolved in court.
The Implied Consent suspension may be appealed to the Administrative Hearings Section. The request for hearing must be mailed within 14 days of the date of arrest or your operator’s or chauffeur’s license and vehicle group designation or operating privilege will be automatically suspended. You are not required to have an attorney at this hearing, but an attorney may represent you if you wish.Please note – A request by a law enforcement officer or prosecutor Read Less
to withdraw a report of refusal must be received by the Department no later than the date of hearing.
Why you should choose The Abood Law Firm for your Driving Offense case
The Abood Law Firm can help you understand what you are facing and how best to deal with it. The more informed you are as a client, the better we can help you defend your OWI charge. Call Abood Law to discuss the circumstances of your arrest and to learn what rights you have.
An OWI Charge in Michigan
Drunk driving is known as Operating While Intoxicated (OWI) in Michigan and may be called Driving Under the Influence (DUI) in other states, but in every practical sense, the terms are synonymous.Drunk driving laws in Michigan are very strict. It is a crime to drive with a blood alcohol concentration (BAC) of .08 percent or above in the State of Michigan. The limit is even lower for those under the age of 21.
In addition, you may be charged with Operating While Visibly Impaired (OWVI) even if your Blood Alcohol Content (BAC) is less than .08. Furthermore, under the same law, you may be charged with Operating While in the Presence of Drugs (OWPD) if you are found to have any amount of a Schedule I drug, such as cocaine in your system. In other words, if your ability to drive is visibly impaired by either alcohol or drugs, you may be convicted of an OWI offense regardless of your BAC. An OWI conviction in Michigan can result in the following penalties:
- Up to 6 points added to your license • Up to a $500.00 fine, 93 days in jail, and/or 360 hours community service.
- License suspension for 30 days, after which, if you are otherwise eligible, a license restriction for 150 days.
- Restricted driver’s license for 90 days (180 days if a controlled substance is involved) • Potential for vehicle immobilization/Ignition Interlock .
- Driver Responsibility Fee – up to $1,000.00 per year for two years (OWI); $500.00 per year for two years (OWPD) • Suspension of your Commercial Driver’s License.
Repeat offenders will face much more severe penalties, as will those whose BAC level was .17 percent or higher (Super Drunk) and those causing death or serious injury as result of OWI.
Furthermore, an OWI conviction can mean a lifelong criminal record and a significant increase in your insurance premiums when your driving privileges are restored.
Defending an OWI charge in Michigan:
A common misconception many people have is that when you are charged with an OWI, it’s bound to result in a conviction. The fact is, there are numerous possible defenses to an OWI charge. Some of the key aspects of an OWI charge that our lawyers will argue on your behalf include:
- The method with which the roadside OWI test was conducted.
- Any comments that law enforcement has attributed to you .
- The officer’s observation pertaining to your condition and ability to drive at the time you were pulled over.
- The results of the blood, breath, or urine tests.
Impairment may even be excusable in certain situations, such as when driving a criticality injured person to the hospital, or when escaping from a dangerous situation.
Whenever you are facing an OWI charge, it’s important to retain a respected OWI attorney with proven results as soon as possible. Michigan has some of the strictest policies for drunk driving in the United States and your freedom is at stake, even for a first offense.
At The Abood Law Firm our goal is to minimize the punishment you face so that you can get on with your life with the least amount of collateral consequences. Depending on the circumstance of your arrest, we may be able to get your OWI charge reduced or completely dismissed.
If you or someone you know has been arrested and charged with an OWI offense in Michigan, contact Abood Law to discuss the circumstance of your arrest.
Terms & DEfinitions
Abood Law Firm been practicing criminal law in Michigan for more than 60 years. The more informed you are as a client, the better we can help you defend your OWI charge. Call Abood Law to discuss the circumstances of your arrest and to learn what rights you have.
Standard Field Sobriety Tests (SFSTs): Horizontal Gaze Nystagmus (HGN), Heel-Toe Walk, and One Legged Stand when administered according to the National Highway Safety Institute Standards. Standard Field Sobriety Tests (SFSTs) are voluntary and can be refused by the citizen without penalty.
Field Sobriety Tests (FSTs): All exercises not endorsed by National Highway Safety Institute standards, or administered properly. Such tests include ABCs, assorted number counting, and calendar months of the year. Field Sobriety Tests (SFTs) are voluntary and can be refused by a citizen without penalty.
Preliminary Breath Test (PBT): A PBT is a breath test typically given roadside at the scene of the stop, which measures the level of alcohol in a citizen’s breath. A preliminary breath test (PBT) is generally not admissible at trial to establish that the citizen was above the legal limit. A PBT may be admissible, however, if a citizen asserts that, at the time he or she was operating a motor vehicle, his or her blood-alcohol content (BAC) was below the legal limit. In other words, that from the time the preliminary breath test (PBT) was administered on the scene until the time the Datamaster is administered at the station (which is admissible at Court), the citizen’s blood alcohol level (BAC) was rising, giving inference that at the time the citizen was operating the motor vehicle his/her BAC was lower than what the Datamaster ticket shows. A Court may permit the admission of the PBT as evidence of the citizen’s blood-alcohol content (BAC) at a point closer in time to when the citizen was operating the motor vehicle.
For a preliminary breath test (PBT) to be properly administered, according the Administrative rules passed by the State Police, a officer must determine that the citizen has not eaten, regurgitated, smoked or put anything in his/her mouth in the 15 minutes prior to administering the PBT. A PBT is voluntary, but refusal of a PBT results in a civil infraction, along with a fine and court costs. If you are under 21, two points will also be added to your driving record. If you hold a commercial driver’s license, a refusal will result in an out of service order along with other consequences as mandated by the Secretary of State. Conventional wisdom dictates that in most instances, a citizen should refuse a preliminary breath test (PBT).
Breathalyzer/Datamaster: Is a test administered generally after arrest at the police station or jail. This test is generally admissible at trial. There is a presumption at trial that the results of this test is the alcohol level at the time the citizen was operating a motor vehicle. However, it is a presumption that can be rebutted. Read Less
Under Michigan’s Implied Consent Law (MCL 257.625f), all drivers, with the narrow exception of citizens with certain medical conditions, are considered to have given consent to a breathalyzer. If you unreasonably refuse a breathalyzer, six points will automatically be added to your driving record and your license will be suspended for one year (two years for a second refusal within seven years). This suspension can be appealed to the Secretary of State if done within 14 days of the date of your arrest and refusal. It can also be appealed, in a more limited way, through the Circuit Court of the county where the arrest took place. For this reason, if you refuse a breathalyzer, it is important to contact a knowledgeable OWI / DUI attorney immediately to protect your rights and driving privileges.
Prior to administering a breathalyzer, an officer must advise a citizen as follows:
I am requesting that you take a chemical test to check for alcohol and/or controlled substances in your body. IF YOU WERE ASKED TO TAKE A PRELIMINARY BREATH TEST BEFORE YOUR ARREST, YOU MUST STILL TAKE THE TEST I AM OFFERING YOU. If you refuse to take this chemical test, it will not be given without a court order, but I may seek to obtain such a court order. Your refusal to take this test shall result in the suspension of your operator’s or chauffeur’s license and vehicle group designation or operating privilege, and the addition of six points to your driving record.
After taking my chemical test, you have a right to demand that a person of your own choosing administer a breath, blood, or urine test. You will be given a reasonable opportunity for such a test. You are responsible for obtaining a chemical analysis of a test sample taken by a person of your own choosing. The results of both chemical tests shall be admissible in a judicial proceeding, and will be considered with other admissible evidence in determining your innocence or guilt.
Probable Cause: The standard of proof required before a police officer can arrest a citizen for operating while intoxicated.
Reasonable suspicion: The standard of proof required for a police officer to stop a motor vehicle and investigate a charge of operating while intoxicated.
Retrograde Extrapolation: The process by which an expert can challenge or bolster the reliability of the breathalyzer result by using a mathematical process and scientific principles to calculate a citizen’s blood alcohol level based on absorption rates, elimination rates, and patterns of alcohol consumption.
Hunch: This is what a law enforcement officer has when the facts do not support a reasonable articulable suspicion that crime is afoot.
Beyond a Reasonable Doubt: The standard of proof a prosecutor is required to meet, and a jury is required to have, in order to return a verdict of guilty.
Motion to Suppress: A challenge of the constitutionality of the stop asserting that the officer did not have the requisite standard of proof at the various stages of the investigation or a challenge of the procedures used throughout the duration of the investigation.
What are the Penalties for Operating While Intoxicated & Lesser Included Offenses?
Operating While Intoxicated (OWI) or Operating With any Presence of a Schedule 1 Drug or Cocaine (OWPD):
• 6 points added to your license
• Up to a $500.00 fine, 93 days in jail, and/or 360 hours community service
• License suspension for 30 days, after which, if the citizen is otherwise eligible, a license restriction for 150 days
• License restriction: to and from work, school, community service & probation
• Possible ignition interlock
• Driver Responsibility Fee – $1,000.00 per year for two years (OWI); $500.00 per year for two years (OWPD)Suspension of Commercial Driver’s License
• 4 points added to your license
• Up to $300.00 fine, 93 days in jail, and/or 360 hours of community service
• Restricted driver’s license for 90 days (180 days if controlled substance)
• Potential for vehicle immobilization
• Driver Responsibility Fee – $500.00 per year for two years
• Suspension of Commercial Driver’s License
• 6 points added to your license
• Up to $500.00 fine and up to 93 days in jail.
• License suspension for 90 days
• Driver Responsibility Fee – $500.00 per year for two years
• Suspension of Commercial Driver’s License
• Civil Infraction – No criminal history
• Three points added to your license
• Up to $250.00 fine
Super Drunk (BAC .17 or higher):
• 6 points added to your license
• Up to 180 days in jail, $700.00 fine, and/or 360 hours of community service
• Driver’s license suspension for one year, possibly eligible for a restricted after 45 days if an Interlock is installed. (Penalties are associated with operating a vehicle without properly installing the Interlock)
• Driver Responsibility Fee – $1,000.00 per year for two years.
OWI 2nd Offense (OWI, Impaired):
• 6 points added to your license
• Up to $1,000.00 fine, 5 days to one year in jail, and/or 30 to 90 days community service
• Driver’s license revocation for a minimum of one year
• License plate confiscation
• Vehicle immobilization up to 180 days with possible forfeiture
• Driver Responsibility Fee – $1,000.00 per year for two years
OWI 3rd Offense: Felony
• 6 points added to your license
• Up to $5,000.00 fine, 5 years in prison or probation with up to one year in jail, and/or up to 180 days of community service.
• Driver’s license revocation for two convictions within 7 years or three within 10 years.
• Vehicle immobilization for up to three years unless forfeited
• Driver Responsibility Fee – $1,000.00 per year for two years.
OWI Causing Death or Serious Injury
• 6 points added to your license
• Death: up to 15 years (20 years if an emergency responder) imprisonment and/or up to $10,000 fine
• Injury: up to 5 years imprisonment and/or up to $5,000 fine
• Driver’s license revocation and denial for a minimum of 1 year (minimum of 5 years if there was a prior revocation within 7 years).
• Vehicle immobilization up to 180 days, unless vehicle is forfeited
• Possible vehicle forfeiture
• Driver Responsibility Fee of $1,000 for 2 consecutive year
The Complexities of an Operating While Intoxicated (OWI) Case
Why Do I Need Competent & Experienced Representation?
Although many OWI & DUI lawyers claim to be competent to handle an alcohol related driving charge, such cases can be extremely complex. The complexity exists because a proper analysis includes not only scrutinizing the officer’s conduct, but a medical and scientific analysis of the administration of certain tests and a review of the data. In addition, an alcohol related driving conviction stays with a citizen for the rest of his or her life. It cannot be expunged and a conviction shows up on both your criminal history and your driving record. In other words, an alcohol related driving conviction is a lifetime commitment.
In addition, the expenses and court costs associated with an OWI are substantial. For an OWI first offense, a citizen will receive fines and costs from the court in the approximate amount of between $1,000 and $1,500, be ordered to pay some restitution to the arresting agency and prosecuting official, and is also assessed a driver license assessment fee of $1,000 per year for two years by the Secretary of State. Six points are also imposed on the driving record of someone convicted of OWI first offense, and generally, his or her auto insurance would be raised accordingly.
Clearly, it is extremely valuable if a citizen can resolve an OWI charge with a non-criminal conviction.
What Defenses Can I Raise to Fight an OWI?
a. Did the Officer Have a Valid Reason to Pull me Over? First, an analysis has to be made of the initial police contact. A law enforcement officer’s traffic stop of a citizen amounts to a seizure contrary to the Fourth Amendment to the United States Constitution when it is not based upon specific articulable facts that warrant a reasonable officer to believe that the citizen committed an offense or was otherwise in violation of the law. Warrantless searches or seizures, are presumed to be unreasonable when conducted outside the judicial process. The law is well settled that in Fourth Amendment terms “a traffic stop entails a seizure of the driver ‘even though the purpose of the stop is limited and the resulting detention quite brief. ’” A traffic stop may not be initiated by a police officer unless that officer has “probable cause to make a stop for a civil infraction or reasonable suspicion of an ongoing crime to make a stop for a criminal violation.” An officer’s reasonable suspicion must be based upon more than an “inchoate or unparticularized suspicion or hunch.” In order to demonstrate that the search was reasonable, the law enforcement officer must articulate specific factors that demonstrate the officer’s conduct was justified based upon the citizen’s actions and the surrounding circumstances. A law enforcement officer’s inability to do so amounts to a violation of citizen’s Fourth Amendment rights and accordingly, any evidence seized must be suppressed as “fruits of the poisonous tree.” Courts have addressed ‘contextual considerations’ and how they play into reasonable suspicion analysis, and have consistently held that the location of the traffic stop and the time of night, without more, do not amount to reasonable suspicion. Typically, in the context of OWI investigations, an officer relies on a violation of the motor vehicle code to make a traffic stop.
b. Did the Officer Have Sufficient Cause to Turn the Traffic Stop into an Investigation for Operating While Intoxicated? In certain circumstances, a seizure that is “reasonable at its inception (for example being pulled over for a civil infraction) may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” The scope of the seizure must maintain reasonableness throughout its duration. It must be “strictly tied to and justified by the circumstances which rendered its initiation permissible.” For example in United States v. Blair,9 the Court held that although the initial traffic stop of Blair was reasonable, the officer’s prolonged detention of Blair was not justified at initiation and amounted to a violation of the Fourth Amendment. In Blair, Blair was stopped because his tag-light was inoperable. The officers had also suspected Blair of possession of narcotics, but did not have reasonable suspicion to stop him on those grounds. The Court found that the action of the law enforcement officer informing Blair that he believed narcotics were in the vehicle and intended to call a canine unit “extended the scope and duration of the stop beyond that necessary to issue a citation for a tag-light violation.” Thus, the Court ultimately held that the stop was in violation of the Fourth Amendment, and suppressed all evidence seized as a result of the illegal stop. When a law enforcement officer’s conduct impermissibly extends the scope and duration of the stop beyond that which was necessary to complete its purpose an argument is available to the citizen that such a seizure is in violation of the citizen’s fourth amendment rights. Even if there is justification for the initial traffic stop, after the law enforcement officer approaches the citizen’s vehicle and has obtained all the information necessary to write a citation, the purpose of the stop should be completed. Further questioning and detention of citizen may exceed the scope and duration of that which permitted the stop, rendering it in violation of the Fourth Amendment.
c. Did the Officer Have Probable Cause to Believe the Crime of Operating While Intoxicated Occurred? Assuming that the law enforcement officer has only initiated a traffic stop as a result of a civil infraction, which is generally not an arrestable offense, the law enforcement officer must still develop probable cause that the crime of OWI has been committed in order to make an arrest of the driver. Typically, an officer develops probable cause with the help and assistance of the citizen by getting the citizen to engage in a number of exercises that the citizen has the legal right to refuse. Such exercises include requesting the citizen to exit the vehicle, administering Horizontal Gaze Nystagmus (HGN) test, the One Leg Stand and the Heel to Toe sobriety tests. Other tests may include the ABCs, counting backwards, reciting the months of the year, picking a number between and, or similar exercise, along with the preliminary breath test (PBT). Conventional wisdom dictates that a citizen should refuse such voluntary tests.
d. How Does the Court Determine Whether There was Probable Cause?
The analysis is based on the totality of the circumstances surrounding the traffic stop of citizen. The Court determines whether there are sufficient facts to establish probable cause that the citizen committed the crime of operating while under the influence of alcohol. In the absence of probable cause, an arrest constitutes an unreasonable seizure in violation of the Fourth Amendment.
In order to determine whether an arrest was supported by probable cause, the Court must determine whether, at the time of the arrest, the “facts and circumstances within [the arresting officer’s] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person to conclude that an individual either had committed or was committing an offense.” This inquiry requires the Court to examine the events leading up to the arrest and then to decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amounted to probable cause.” Courts require the officers to show more than mere suspicion. For example, in Ross v. Meyers, the Sixth Circuit Court of Appeals found that probable cause was not conclusively established based on the following factors:
1. That at 1:00 a.m., the citizen was involved in a single car accident in which he drove into a ditch;
2. That during an interview with the citizen, he had moderate odor of intoxicants on his breath, staggered when he walked, had bloodshot eyes, and had difficulty understanding directions;
3. That the citizen admitted to consuming alcohol on the evening of the accident;
4. And that the responding officers had significant training and experience.
e. Courts have found that evidence of speeding and odor of intoxicants are alone insufficient to constitute probable cause. Therefore, depending on the facts of any given case, a citizen can raise a defense by asserting that the officer lacked probable cause to arrest.
f. How Do Field Sobriety Tests Affect a Finding of Probable Cause? As referenced above, a citizen’s performance on field sobriety tests is considered in the officer’s analysis of whether there is probable cause to arrest the citizen. However, despite all the tests and exercises typically administered by a law enforcement officer, there are only three standard field sobriety tests that have any empirical data associated with the individual’s performance of the test and being above the legal limit. Those three tests are the Horizontal Gaze Nystagmus (HGN), the Walk and Turn, and the One Leg Stand. The empirical data is specifically supported with research and studies both with regard to the standardized field sobriety tests and with regard to the random exercises that are generally asked to be performed. With regard to the standard field sobriety tests, there is data that supports the conclusion that there is more than just a hunch that a person is above the legal limit when the standardized field sobriety tests are administered properly and the appropriate clues are noted. For example, if an officer notes four out of six possible clues while administering the HGN, there is a 77 % probability that the individual is above the legal limit. If an officer observes two or more clues in the One Let Stand and Walk and Turn, the probability is 68% and 65%, respectively, when the tests are properly administered. The percentages become more accurate when the battery of the three standardized field sobriety tests is administered.
g. What if the Officer Failed to Properly Administer the Field Sobriety Tests?
Few, if any, officers administer the standard field sobriety tests properly in accordance with the National Highway Traffic Safety Administration (NHTSA) protocol. In People v. Mullen, the Michigan Court of Appeals discussed the effect of improperly administered field sobriety tests on an officer’s finding of probable cause. In Mullen, the citizen, after performing a variety of field sobriety tests, was arrested. The citizen refused the Datamaster and the arresting officer secured a search warrant for the citizen’s blood. The issue in Mullen was whether, after striking improper information from the search warrant, there was sufficient information to support a finding of probable cause. What is important to note is that the Court, in determining whether there was probable cause, did not consider the results of the improperly administered Horizontal Gaze Nystagmus (HGN) test. This issue was also specifically addressed with regard to the HGN test in People v. Berger, wherein the Michigan Court of Appeals stated that the HGN test is scientific evidence, and held that the necessary foundation for the introduction of “evidence regarding the HGN test in Michigan is evidence that the test was properly performed and that the officer administering the test was qualified to perform it.” In Daubert v. Merell Dow Pharmaceuticals,30 the United States Supreme Court articulated “in order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by scientific method.” The Court went on to state that “[p]roposed testimony must be supported by appropriate validation – i.e., ‘good grounds,’ based on what is known,” which as the Court stated, establishes a standard of evidentiary reliability. As to the standardized field sobriety tests, the Court of Appeals in Mullen specifically held that the officer’s “incorrect administration of the HGN test led to an inaccurate interpretation of the results…”And the Court, in analyzing how the test should have been performed relied on NHSTA standards, which emphasizes that validation of test results applies only when:
• The tests are administered in the prescribed standardized manner
• The standardized clues are used to assess the subject’s performance
• The standardized criteria are employed to interpret their performance
• And that if “any one of the standardized field sobriety test elements is changed, the validity is compromised.
h. ”And further that “THE STANDARDIZED FIELD SOBRIETY TESTS ARE NOT AT ALL FLEXIBLE, THEY MUST BE ADMINISTERED EACH TIME, EXACTLY AS OUTLINED IN THIS COURSE.”
i. Am I Required to Do the Field Sobriety Tests? Often a law enforcement officer may administer, or attempt to administer a series of standard or non-standard field sobriety tests. Not only are you not required to do the field sobriety tests, conventional wisdom is that a citizen should refuse to do such tests. A citizen is not required to cooperate or engage in these tests voluntarily, and none of the tests can be performed without a citizen’s cooperation. When an officer administers such tests, rarely can the officer identify the number of clues, a standard method of administration, or a probability that if the citizen fails that the citizen is above the legal limit. The reason why is because there are number of reasons why a citizen might fail these tests without regard to alcohol consumption, such as education, fatigue, and particularly, nervousness.
j. What is the Difference Between Standardized and Non- Standardized Field Sobriety Tests? The only Standardized Field Sobriety Tests are the Horizontal Gaze Nystagmus test, the One Leg Stand, and the Heel to Toe test. The reason these are considered “standardized” tests is because there is empirical data supporting the proposition that there is a direct correlation between failure of the test and being above the legal limit. Any other exercises are considered non-standardized tests. Because the non standardized tests are not as reliable and do not have empirical data to support any correlation between a subject’s performance and level of impairment, proper administration of the standardized field sobriety tests are essential.
k. What is a Preliminary Breath Test and Am I Required to Take it? Following the administration of the standardized field sobriety tests and non-standardized field sobriety tests, a law enforcement officer generally requests a citizen to submit to a preliminary breath test (PBT). Pursuant to Michigan Administrative Code Rule 325.2655(2)(b) “[a] person may be administered a breath test on a preliminary breath alcohol test instrument only after it has been determined that the person has not smoked, regurgitated, or placed anything in his or her mouth for at least 15 minutes.” The purpose of the above referenced administrative rule is to ensure the accuracy of the preliminary breath test results.36 When an officer does not comply with the administrative rules for the administration of such tests, suppression for purposes of probable cause may be required.37 A PBT is voluntary, but refusal of a pbt results in a civil infraction, along with a fine and court costs. If you are under 21, two points will also be added to your driving record. If you hold a commercial driver’s license, a refusal will result in an out of service order along with other consequences as mandated by the Secretary of State.
l. What is a Datamaster/Breathalyzer and Am I Required to Take it?
A Datamaster is the chemical breath test administered on a citizen at the jail after he/she is arrested for operating while intoxicated. In People v Fosnaugh,38 the Michigan Court of Appeals addressed the admissibility of a chemical breath test. In Fosnaugh, the Court of Appeals, citing to the Michigan Supreme Court decision in People v. Wager, found that in order for the Datamaster results to be admissible, the operating agency must follow the administrative rules affecting the reliability of the test. Specifically, the Court of Appeals ruled as follows:
To be admissible, the test results must be both relevant and reliable. People v Wager, 460 Mich. 118, 126; 594 N.W.2d 487 (1999); People v Campbell, 236 Mich. App. 490, 504; 601 N.W.2d 114 (1999); People v Wujkowski, 230 Mich. App. 181, 186-187; 583 N.W.2d 257 (1998). Further, suppression of test results is required . . .when there is a deviation from the administrative rules that call into question the accuracy of the test. Id.
MCL 257.625a requires that the “sample… of breath shall be taken and collected in a reasonable manner.”39 Also, as contained in MCL 257.625a(6)(g), the state police formulated rules regarding the administration of the chemical tests.40 These rules are designed to ensure the accuracy of the results.41 Rule 325.2653, entitled “Equipment Accuracy,” requires that the testing device be inspected and verified for accuracy at different time intervals.
Rule 3. (1) An evidential breath alcohol test instrument shall be verified for accuracy at least once during each calendar week, or more frequently as the department may require, by a class II, class IIIA, or class IIIB operator. The test for accuracy shall be made in a prescribed manner using a standard alcohol solution that is approved by the department. For the instrument to meet the requirements for accuracy, a test result of .076 to .084, inclusive, shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor. Other vapor concentrations shall show proportionally accurate results.
(2) A preliminary breath alcohol test instrument shall be verified for accuracy at least monthly, or more frequently as the department may require, by a class IIIA or class IV operator. The test for accuracy shall be made in a prescribed manner using a standard alcohol solution that is approved by the department. For the instrument to meet the requirements for accuracy, a test result of .076 to .084, inclusive, shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor.
(3) Approved evidential breath alcohol test instruments shall be inspected, verified for accuracy, and certified as to their proper working order by a certified class IV operator or the instrument manufacturer’s authorized representatives approved by the department within 120 days, inclusive, of the previous inspection.
Pursuant to the administrative guidelines, the readings from the log should fall between 0.076 and 0.084 grams of ethanol per 210 liters of breath.42 When the calibration logs fall outside the required range, the Datamaster may be suppressed as it does not satisfy the criteria as set forth in Fosnaugh for it to be admissible at trial.
Under Michigan’s Implied Consent Law, all drivers are considered to have given consent to a breathalyzer. If you unreasonably refuse a breathalyzer, six points will automatically be added to your driving record and your license will be suspended for one year (two years for a second refusal within seven years). This suspension can be appealed to the Secretary of State if done within 14 days of the date of your arrest and refusal. If you miss the 14 day deadline, a more limited appeal is also available in Circuit Court. Read Less
It may seem as if a misdemeanor charge of Operating While Intoxicated should be relatively straightforward. However, it takes an experienced OWI attorney to apply the law and standards at each stage of an OWI investigation.
Contact Us About Your Case
The attorneys at The Abood Law Firm are happy to provide initial consultations at no charge and are available to advise clients 365 days a year. Contact us today to see how Abood Law can help you.