In The News

Sunday, April 17, 2016

Fanning Off The Breath Test - Another Success Story

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

The story of a Mason woman had a happy ending after officers accused her of confounding the datamaster with her perfume. The prosecutor watched the video of the breath test sequence and dismissed the drunk driving charge and allowed the woman to simply accept responsibility for a careless driving ticket. "I watched the video of the breath test and I could not believe it," said Michigan Drunk Driving attorney Mike Nicnols of Meridian Township. Nichols adds: "the officers were nice but they were pulling theories about why they could not get a valid sample right out of their rear ends." Nichols office is in East Lansing and he defends complex criminal cases and Dui charges all over the state.

The woman was arrested in southern Ingham County for drunk driving back on Marxh 1st when a heavy snow storm hit the mid-Michigan area. She nervously made her way through sobriety exercises, told the officers she had 2 1/2 drinks while helping a friend with a project in his home. Nichols says: "the breath test sequence is where things got really interesting. I watched the video and could not believe my good fortune." The woman delivered a long steady breath and blew as hard as she could. The officers failed to instruct her consistent with the Michigan breath test manual. Then the printer delivered the message "invalid sample."

At this point the case went from interesting to a winner, Nichols says: "the officers are heard speculating that the woman's perfume was screwing up the datamaster dmt reading and moreover, that the perfume elevated the reading." Then an Ingham County jail officer brought in a fan to literally blow on the woman while she sat for a second 15 minute observation. Rule 5 of the Michigan Administrative Code for breath testing requires that a person be observed by the officer for 15 minutes immediately prior to giving the test (A/R 325.2655).

Nichols says that "while the officers should at least get credit for restarting the observation period they completely failed in walking out of the observation room entirely and left her sitting there with a fan blowing on her. Further, to speculate that her perfume was interfering with the instrument is just without any training or other foundation. Finally, the use of the fan by the jail officer and some of his comments made me think that this was not the first time a problem has arisen in the Ingham county jail with the datamaster dmt." She ultimately gave a sample that showed her over the limit ... But in the end it had no bearing on the result. The woman, who needs her license to drive for her job and cannot have even a restriction, is now off to the Secretary of State to get her photo license reinstated and get her life back after she found out what it means to be "committed to results"

Mike Nichols can be reached at 517.432.9000 or mnichols@nicholslaw.net. Call the Michigan drunk driving attorneys today.

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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.