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Wednesday, March 13, 2013

East Lansing DUI attorney says judges starting to understanding the "fallacy of infallibility" with breath testing - even if they are in other states

By Michael Nichols

A South Carolina judge has applied in court what many scientists have been saying about breath testing for years - the effect of the 'blow' will add uncertainty to the result.

East Lansing DUI attorney Mike Nichols, author of the West OWI Handbook, hopes a recent ruling from South Carolina will give other judges courage to exclude "bad breath:" "scientists from Dennis Simpson of Kalamazoo to Mike Hlastala of Seattle have said the length and manner of the blow from a person affects the reliability of the result in scientific journals that are peer reviewed. The science is there. The officer needs to be careful about how to instruct the subject delivering the breath sample."

A link to news coverage of the ruling:

http://www.postandcourier.com/article/20130312/PC16/130319743/1177/sc-judge-x2019-s-ruling-gives-new-ammo-to-those-fighting-dui-tests

Nichols is a founder and current Secretary of the Michigan Association of OWI Attorneys. The organization held a primer on breath testing March 5th at Cooley Law School's Lansing campus with Dr. Hlastala. Nichols said "Dr. Hlastala has the expertise of understanding human pulmonary function. He observed, among other things, that the alcohol curve In a breath sample cannot 'plateau' as breath test instruments are designed to assume."

Michigan is implementing a new instrument known as the DMT. The company that makes the DMT also just sold the rights to produce the instrument to a new company - thus throwing into 'uncertainty' details in the long term such as servicing and future implantation of new instruments. However, Sgt. Perry Curtis of the Alcohol Enforcement Unit, told Nichols on Friday March 8 that he expects things to stay the same through at least the fall regarding the servicing of the instruments and installation of DMTs - which are being rolled out across Michigan to replace the old datamasters around Michigan.

If you need an attorney who knows how the tests can and should be used, contact the Nichols Law Firm at (517) 432-9000.

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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.