In The News

Saturday, January 14, 2012


By Michael Nichols
Categories: Drunk-Driving

The Lansing Police Department claims that it promotes transparency by providing the logs for simulator checks on its breath test device on the internet (http://www.lansingmi.gov/police/doc_library.jsp).

However, the logs do not tell the whole story, especially when the actual simulator results are not accurately reported on the logs. “We caught an officer failing to report the results of simulator checks that were well outside the limits of acceptability,” says Lansing OWI-OUIL-DUI attorney and expert Mike Nichols.

 Lansing Police Officer Donald Porter recorded “.075” on the OD 33 log for August 9, 2011. The officer’s recorded result was .001 below the range of tolerance established by rules for breath testing devices in the state of Michigan (Administrative Rule 325.2651). When an officer conducting a simulator check obtains a result that is above or below tolerance (.076 to .084), the officer is supposed to conduct another simulator with the same solution. That solution is mixed by the officer with water and an ampoule of alcohol that is premixed so that it is at .080 after it is mixed with water, heated and then allowed to cool for a few seconds. The idea is to ensure that the datamaster device can reliably identify a target of .080. .08 grams of alcohol per 210 liters of breath is the legal limit for drunk driving in Michigan under MCL 257.625.

Nichols said: “when I initially reviewed the OD 33 Logs, I noticed that the officer did not do a second test when he obtained the .075, even though that was out of tolerance.” However, Nichols, an OWI expert, adjunct law professor at Thomas M. Cooley Law School and author of the drunk driving guide for Michigan lawyers by Thomson Reuters West publishing, ordered the actual tickets that are printed during the simulation. “The datamaster prints out tickets during a simulator check just like it does when a subject is arrested,” he added.
The intrigue developed at that point after Nichols and his staff flyspecked the simulator tickets for 2011 and compared them to the logs. “The scary part is that hundreds of people were probably convicted based on breath tests provided by an instrument that may have been reliable or it may have not: this officer’s decision to ignore the rules took away the ability of a jury to tell one way or another.”
Nichols went to trial on January 11, 2012 before Judge Frank J. Deluca on a case involving a woman who was arrested 16 days before the falsified simulator check occurred. The woman was allegedly a .17 on two consecutive samples on the datamaster in question. “However, there was a tremendous disconnect between her physical and mental appearance and the numbers produced by that machine,” Nichols said.
Further, the arresting officer, Sgt. David Ellis, claimed that she “almost hit me” when he testified on direct to the jury. However, when the video from his in-car camera was played for him at the end of his direct examination, the video showed that the woman’s car crossed the center line on an s-curve then came back into her own lane well before the accident. “Sgt. Ellis also claimed that he had to swerve to get off the road and slam on his brakes at a pre-trial hearing,” said Nichols. “I was astonished that he would be so aloof as to fail to read his own testimony from that hearing and watch the video even though he had to be curious that I built up how close he came to a collision when I cross-examined him at that pre-trial hearing. Maybe he thought my client would just fall on her knees before the government and plead guilty,” he added.
There was one more point: the officer, Sgt. Ellis also failed to wear his microphone to record the audio of the client’s responses to his questions during the investigatory phase. “The assistant City Attorney and the officer spent a LOT of time during his direct examination having him explain how he has a very important job supervising others and was only on the road because of budget cuts,” said Nichols. “It was curious when he testified that he has to make sure that officers are doing their job and not sleeping. The only time I even had to make an argumentative comment during closing argument was when I reminded the jurors of that comment and said ‘it’s time to make sure that justice doesn’t sleep in this city.’”
From there, the problems with the city’s investigation of drunk driving cases only grew more stark when the breath test operator testified. “After the 120 inspector talked about not getting a chance to see what other officers said or did and that he relied on them to do their jobs correctly, the breath test operator took the stand and claimed she did the test properly.” That was when the final blow to the city’s effort to convict a person with unreliable evidence landed. Nichols said: “it was evident that she did almost nothing correctly and in fact contaminated the mouthpiece through which the client blew into the guilty box: thank goodness I had a manual and a video of what really went on in that breath test room.”
The bottom line is that the test and the entire case was contaminated by confirmation bias and Nichols remains concerned. “officers are out there – and they are good people for the most part just doing their job – but they’re making observations and conducting DUI investigations with the objective of just confirming their presumption that people are driving drunk if they are out after a certain hour and smell like they have consumed some alcohol.” Fortunately, the result in this case for Nichols’ client was a not guilty verdict and reassurance that justice in Lansing is alive … and awake.
Mike Nichols can be reached at mnichols@nicholslaw.net or 517.432.9000

Need a Lawyer?

Get an online consultation or call 517-432-9000

Online Consultation »

Do the Medicines You Take Criminalize Your Driving?

Family Law encompasses a broad range of issues that occur between family members. Our team can help you in all of these areas...

More »

Personal Injury / Traumatic Brain Injury Experts

Traumatic Brain Injury (TBI) is one of the most frightening and serious forms of injury...

More »

Criminal Defense

We are skilled, experienced and committed to resuts in both the serious and misdemenor criminal case

Personal Injury

We have successfully represented clients with serious and traumatic injuries

What our clients are saying

more testimonials »

Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.