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Drunk Driving – General Information
Video recording equipment exists in many police vehicles. The video tapes that we obtain regarding traffic stops have revealed many times that the police officer’s justification for the traffic stop was insufficient. Even when a legally sufficient reason exists for the traffic stop, however, the driving does not always support the officer’s conclusion that the motorist was intoxicated. Speeding, for example, is statistically inconsistent with intoxication.
But Michigan police officers are generally not trained in these tests. Our state allows any so-called “test” invented by police officers or police academies to be used in the field. The hodgepodge of self-styled exercises lacks statistical validity, but those exercises may be subject to challenge. Even those officers who are properly trained typically do not follow the NHTSA standards or testing protocols, and they hurry through the administration of the standardized tests. As a result, Michigan police officers frequently decide a driver’s fate in only a few minutes. The officer’s administration of field sobriety tests and a motorist’s ability to perform those tasks are critical aspects of the case that must be properly analyzed.
Field sobriety tests and the PBT are employed by the police to determine whether a person should be arrested. While a motorist should politely refuse both the field sobriety tests and the PBT, they rarely realize this until after they have been arrested. Nevertheless, the officer’s decision to arrest is subject to several attacks whenever the procedures deviate from established practice, protocols and procedures. Unfortunately, most attorneys are not knowledgeable enough in these areas to accurately assess the field sobriety tests and preliminary breath test results. The officer’s decision to arrest is a critical stage of the case that must be properly analyzed.
If you are exposed to certain industrial chemicals, paint thinners, suffer from gastroesophageal reflux disease (GERD, also known as acid reflux), or have diabetes, your breath test results may be artificially high.
Many attorneys fail to look further than the Datamaster breath score when developing a defense or, more commonly, deciding whether to accept a plea. This is a critical error. Practical defenses can be developed very simply by reviewing the right documents and the police videos. Breath test results may be inadmissible because of deviations in the Datamaster results, problems with the testing procedure, or medical issues outside your control.
“Very few people have a partition ratio of 2100 to 1. It ranges anywhere from about 1100-to-one up to 3500-to-one and higher. And there is no way of knowing at the time of testing what your partition ratio was because [it] changes within an individual all the time… It means if you blow, let’s say, a 0.11 and you have a 1300-to-one partition ratio, that 0.11 is really 0.07. You’re innocent. Your crime, unfortunately, was not being average.”
Shortly after consuming alcohol, while alcohol is still being absorbed into the body, your breath-to-blood correlation can be as low as 900-to-one, even though the Datamaster machine assumes a ratio of 2100-to-one! This raises doubts about the prosecutor’s case against you. You need an attorney who understands these issues and will communicate them effectively to a jury.
The BAC Datamaster suffers from several problems. Although the device is supposedly accurate to 0.004, that accuracy is premised on laboratory conditions using controlled samples. Introducing a police officer as the breath test operator and a live person as the test subject, test results can reveal wildly deviating results. The Michigan Breath Test Operator Training Manual provides an example of three test results produced registering a 0.17, followed by 0.11, followed again by 0.17. That’s a range of inaccuracy of 0.06, nearly the legal limit itself.
The BAC Datamaster can also display several error messages, and the police are specifically instructed not to take the unit out of service. This includes temperature error, which can dramatically alter a breath test score, calibration errors that obviously undermine the integrity of the breath test results, and even an error message FATAL SYSTEM ERROR. Without knowing whether the BAC Datamaster displayed a FATAL SYSTEM ERROR on the date of a breath test, judges, prosecutors and most defense attorneys accept the Datamaster results as reliable.
At one time, the legal blood alcohol limit was 0.15 percent, a level at which most people are intoxicated based upon studies by the American Medical Association. Later, it was lowered to 0.10 percent, and a driver is now “presumed” to be intoxicated at 0.08 percent, nearly half the prior level. The National Highway Traffic Safety Administration has suggested that the legal limits be reduced to 0.05. Using the same logic that if it’s dangerous to driver over 100 mph and the speed limit is 70 mph, we ought to reduce the speed limit to 35 mph so we can catch more people driving over 100 mph.
A good rule of thumb is that one drink is metabolized to the point of elimination from the blood stream each hour. Therefore, typically, if you have one drink, waiting one hour before driving is a good idea. Other factors influence and can increase or decrease one’s BAC such as fatigue, having eaten, and the type of drink it is, so the best way to avoid OWI is to avoid driving after drinking anything at all.
The ever decreasing permissible blood alcohol level was intended to “crack down” on drunk drivers. Instead, it has criminalized thousands of otherwise law abiding citizens, threatening them with steep fines and costs, probation, mandatory counseling and alcohol “awareness” programs, community service and even jail. Meanwhile, alcohol-related traffic fatalities have actually increased during the last few years.
Convictions don’t disappear – Alcohol-related offenses cannot be expunged. Even if you finish probation, the charge stays on your driving record.
Time is short – Video tapes are often destroyed within two to four weeks, and if you refused to take a breathalyzer test, you only have 14 days to contact the Secretary of State to challenge a mandatory one year suspension of your license.
If you have been charged with an alcohol related crime, you may feel helpless and uncertain of your rights. At The Law Office of Gerald F. Chefalo, our attorneys have extensive experience defending alcohol related crimes throughout Northern Michigan. We know the courts, we know the judges and we know how to help you. The first thing you must do, is contact an attorney immediately. We are available 24/7 just for this reason. We have someone answering the phones to assist you.
Trust our experience. You need a legal team familiar with the court system to ensure the best results for your case. There are many different alcohol-related offenses in Michigan. Our comprehensive knowledge of Michigan drunk driving law is your best defense. We can be your legal advocate. CALL TODAY.
Let us start working on your defense including seeking a dismissal, negotiating a lesser charge, minimizing penalties, aggressively defending you in court, pursuing the most lenient sentence possible, limiting court appearances, and arranging for one time appearances for out-of-state clients.
You have a right to defend yourself. Make the police and prosecutors prove their case beyond a reasonable doubt. But to challenge the government’s case, you need attorneys that understand the law and the science involved in drunk driving cases. WE ARE PROVEN FIGHTERS!