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Wednesday, April 18, 2012
By Michael Nichols
Categories: Drunk-Driving
Sometimes that’s exactly what the prosecutor wants you to believe: that a breath or blood analysis below the legal limit does not mean the accused citizen is not guilty. Did you know that you can be arrested for drunk driving even though you blew a .07 or below on the preliminary breath test and/or the Datamaster machine? Well, believe it, because you can.
The lawyers at the Nichols Law Firm in East Lansing have had several clients who blew below the legal limit of .08. East Lansing DUI attorney Wendy Schiller Nichols has advice on what you should do if you truly only consumed 2 beverages, but yet were pulled over for swerving or weaving or some other driving infraction and then arrested for drunk driving/
First, be cooperative with the police officer. If you are pulled over, and the officer smells alcohol (which they almost always say they do), then chances are, you are on your way to jail. With that in mind, there is no reason for you to take the preliminary breath test which will be offered following the field sobriety tests. Wendy Schiller-Nichols’ opinion is to agree to perform the Datamaster tests (at the police station). If you refuse the preliminary breath test, it is a civil infraction with a fine. If you refuse the Datamaster breath test, depending on your driving record, you will lose your license for at least a year and it is 6 points on your driving record. That can be pretty devastating to someone who drives for a living or has kids in sports or other demands.
After being stopped, politely ask the police officer the reason(s) why he stopped you. Prosecutors will use what is called retrograde extrapolation in order to justify their charge of impaired driving or operating while intoxicated. For many reasons, using retrograde extrapolation to show a jury that you were .08 or higher at the “time of operating” is unreliable and a motion to exclude such testimony should be filed and heard by the court prior to trial. Even the supervisor of the toxicology unit at the Michigan State Police will admit that there are many assumptions that must be made about the driver before retrograde extrapolation calculations can be made. Assumptions equal guesses. Guesses equal junk science.
If you are one of the unfortunate who blew below the legal limit of.08, and was arrested for drunk driving, contact Wendy Schiller-Nichols to discuss your case.
wsnichols@nicholslaw.net