In The News

Sunday, August 3, 2014

Breath Testing and Pulling the Curtain: Even the Highest Breath Alcohol Results are Meaningless if The Results Are Not Admitted Into Evidence

By Michael Nichols
Categories: Michael J. Nichols, Drunk-Driving, OWI

Michigan Forensic Evidence and chemical test crusader Mike Nichols, a DUI-DUID attorney in East Lansing, continues to scratch and claw for good science in Michigan courtrooms. Nichols has taken one step toward forcing the State of Michigan to reveal the secrets behind the datamaster.  A judge ordered chemical test results of .23/.24 grams of alcohol per 210 liters of breath suppressed. Nichols says "this was a case in which no one saw this man drive, the officers jumped to conclusions, could not get their PBT to work FOUR times, had no objective indications of intoxication other than alcohol on his breath then claim the datamaster result is enough to convict."

Nichols argued that the variance of the instrument was never properly developed or calculated from a standpoint of uncertainty in the amount or - a statistical probability of a false positive. He was part of a team of lawyers who requested the source code for the instrument and the download data in order to properly analyze and inform the jury just what the evidence meant. Nichols said "when you add to the fact that video of this man's physical and mental condition was destroyed as was video of the breath test sequence itself, we had nothing with which to defend him from these high numbers. Remember, the mental and physical condition of the accused is the first thing that the judge tells the jury to consider in an OWI case." The judge granted the request or in the alternative, ordered the sheriff to provide access to the instrument for an inspection.

The prosecutor never made the information available and never scheduled the inspection. Then, the sheriff replaced the datamaster in the jail so that the one used in this case is gone. The judge ruled that the result is therefore suppressed. Nichols said "the prosecutor will appeal. We will have to see where it goes from here."

One the other side of the state, a judge ruled that results from the "new' datamaster, the dmt, are inadmissible until the government provides a VALID uncertainty estimate. Nichols says "we are still litigating this issue and I do not want to jeopardize the case by publicly revealing details. However, I think it is important for the public and for lawyers to know that a valid forensic analysis is more than just "picking" a variance or "error rate" out of the air. It is a matter of valid statistical analysis of all of the sources of variance or even error."

The source code of the instrument is like the software on which a computer is programmed. It is critical to analyze all the sources of error. A very small error for example in extrapolating the very tiny 10 cubic centimeters of breath that are actually analyzed by the machine into 210 liters leads to a big error at the other end when the "result" is reported.

Nichols is an adjunct professor of DUI Law and Practice and Forensic Evidence in Criminal Cases at Western Michigan University/Thomas M Cooley Law School and author of the West practice book for Michigan lawyers, which he is currently updating. He lives in Meridian Township near his main office with his law partner and wife Wendy and their children. mnichols@nicholslaw.net


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.