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Sunday, February 5, 2012
By Michael Nichols
Categories: Drunk-Driving
The Lansing City Attorney's office failed in its recent attempt to hide the fact that its datamaster simulator records were falsified. "I was horrified that the city's lawyers first failed to acknowledge the wrongdoing but then tried to keep it out of court during a trial," said OWI-OUIL-DUI lawyer Mike Nichols.
The datamaster simulator logs reflected a borderline test at .075 on August 9, 2011. A simulator test is considered acceptable if it is between .076 to .084 under Administrative Code Section 325.2655. Nichols said: "if an officer conducting a weekly simulator obtains a reading outside of tolerance, then he or she is obligated under the rules to run another test with the same simulator solution."
The City of Lansing posts its logs of these simulator results on-line at the city's web-site. Nichols, who is author of the Michigan OWI Handbook for lawyers by Thomson West publishing, also ordered the individual test tickets for the corresponding dates. "The manual for conducting simulators requires the officer's to save the tickets from the simulator tests. The machine will print one up just like a subject ticket following an arrest. My jaw dropped when I read the results for August 9," he added.
The August 9 tickets reflected that the .075 result was actually the second simulator test. The first one was even further outside of tolerance at .073. Nichols tried to give the city's lawyers a chance to do the right thing. "At the risk of giving away a trial surprise for them I called them and told them what I found. Amazingly, they blew it off and acted like it was no big deal because it was 16 days after my client's test and her breath alcohol estimate was so high. What they just refuse to understand is that you don't 'teach' the datamaster to do its job properly, it will give you a false positive every time - garbage in - garbage out."
The matter came to a head when it was heard by a jury last month before Judge Frank Deluca. The city's lawyers tried to keep the test results out of evidence. However, they were admitted under a rule of evidence known as 106 or, '"the rule of completeness." Nichols said: "the rule of evidence requires that a court allow the entire part of a written or verbal piece of evidence in the interest of fairness so that the fact-finder gets the entire context of the evidence or testimony."
Despite the datamaster's breath alcohol estimate of .17, the jury returned a verdict of not guilty on both the main charges of Operating While Intoxicated or in the alternative with an unlawful breath alcohol level of .08 grams per 210 liters of breath as well as the lesser charge of Operating While Impaired. "The problem with the datamaster is that if you do not maintain it, simulate it or administer it properly then the best you are getting from it is a guess."
Nichols said. "Imagine trusting your battery-operated scale to tell you an accurate when when the batteries are low and you stand on it with rocks in your pockets." He added: in this case, the jury had the best evidence of the client's sobriety - her performance on video of sobriety tests, the breath test and her booking sequence."
Mike Nichols has practiced in the Lansing area for his entire 13 year legal career. He is an adjunct professor of DUI Law and Practice at Thomas M. Cooley Law School in Lansing. Nichols can be reached at 517.432.9000 or mnichols@nicholslaw.net