Everyone is aware that when they are pulled over for suspicion of operating while intoxicated, you will be asked to provide a breath sample. What fewer people know is that you will actually be asked to provide TWO breath samples. These tests will ultimately decide the future of your case. In order to provide the best defense, your attorney should be aware of how the machines operate, along with their major drawbacks. Successfully combining errors by the police with errors by the machine can lead to the dismissal of your case.
The Famous Preliminary Breath Test
Let’s first focus on the Preliminary Breath Test (“PBT”) that you will be asked to take roadside. This breath test is used to help the officer determine if he has probable cause to arrest you for operating while intoxicated. Obviously, the best defense is to refuse this test! You are not required to take the PBT, despite what the officer may tell you. Refusing to take the PBT on the roadside is a civil infraction, punishable by a fine. Therefore, you have the choice to give the police evidence against you or pay a fine. The officer will still most likely arrest you, but you have removed the most powerful piece of evidence against you.
If you choose to take the PBT, not all is lost. The PBT result is usually the biggest piece of probable cause that will be used against you. However, by properly evaluating the police report and dash-cam videos, errors can be found that could invalidate the result. For instance, officers are trained to observe the individual for 15 minutes prior to administering the PBT. This ensures that no foreign substance has been introduced into the individual’s mouth. Moreover, it is assumed that any mouth alcohol will have dispersed from the mouth. This is important, because the PBT is intended to test air from your lungs, not mouth. Only the air from your lungs provides a reliable sample of your BAC. Therefore, it is important to review the police report and video to determine if the 15 minute period was observed.
These PBT machines are incredibly unreliable. (They are actually inadmissible in court, except in limited circumstances, due to their unreliability). Due to their use in the field in rough conditions, the machines are not made with complete scientific accuracy. They cannot distinguish between mouth alcohol and air from your lungs, they are infrequently calibrated, and there are no ways to tell if the machine is working properly. If it provides a result, it is assumed that the machine acted as it was supposed to. This is why it is very important to have an attorney who will review your case to determine the reliability of your PBT.
Datamaster (“DMT”) Machine
We move next to the Datamaster breath testing device that is located at the police station. EVEN IF YOU TOOK A PBT ON THE ROADSIDE, YOU ARE STILL REQUIRED TO SUBMIT TO A CHEMICAL TEST AT THE STATION. Many individuals will refuse this test because they assume they are only required to take one test. This line of thinking leads to a suspended license. You may voluntarily submit to a breath or blood test once arrested, pursuant to the chemical test rights you are read. If you choose the breath test, certain requirements must be met by the police. Once again, they must observe you for 15 minutes prior to administering the test. This machine’s result will be the main piece of evidence against you, as it is admissible in court and determines how you are charged. Therefore, it is important to get the booking room video where the Datamaster test is administered. A thorough review of the video can turn up numerous issues for your benefit! Very few lawyers utilize this powerful piece of evidence even though it can mean the difference between a guilty and not guilty verdict. Finally, these machines are finely-tuned scientific machines. This means that they require weekly calibration checks and maintenance reviews. All of these records are stored by the police department. It is vitally important to review these records to ensure your machine was acting properly and was properly calibrated at the time you used it!
What have we learned?
Your breath test result may seem air-tight if you aren’t properly informed as to the possible defenses against it. Through extensive research and hands on training, we have learned how to invalidate breath test results so that your case can be dismissed. Do not settle for an attorney who simply looks at the result of your tests as concrete proof of your guilt. Choose an attorney who will review your facts and fight your case!
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 19 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013 & 2014 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2017 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”