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In The News

Friday, May 18, 2018

What is Happening With the Breath Test Devices in East Lansing and Clinton County?

By Michael Nichols
Categories: Drunk-Driving

The Nichols Law Firm has identified significant problems with major pieces of evidence in drunk driving cases in both East Lansing and Clinton County. When a person is arrested for suspicion of OWI under MCL 257.625, the officer will typically request a breath test if the person gives valid consent under the 4th Amendment of the United States Constitution. The breath test device that is used in Michigan is the Datamaster DMT. The Nichols Law Firm identified problems with two instruments.

In East Lansing, the simulator tickets are missing for March 26 and April 2nd. It seems as if they have been simply tossed in the trash. The simulator is a computer-based weekly check for accuracy using a dry gas canister to simulate roughly .08 grams of alcohol per 210 liters of human breath. The instrument in East Lansing is scheduled for a weekly self-check at 4am on Mondays. The traceability of the instrument is critical to determining whether the instrument is calibrated correctly and to validate that the test of your breath or your loved one’s breath, is traceable to a national standard. If the tickets are unavailable to prove that what the officer recorded was both accurate and the product of a proper calibration, then the breath test result should not be admitted at a trial. That means that whether the instrument says you are a .10 or a .30, it will be as if the breath test never happened. Remember: the Preliminary Breath Test (PBT) at the roadside before you are arrested is not admissible at trial, absent unusual circumstances such as improper cross examination by the defense attorney.

In Clinton County, the instrument that was used for the last approximately 4 years was taken out of service on/about April 22nd, 2018 by the service technician. There were an inordinate number of "interference detected,” “incomplete," and other errors with the instrument. "We are still investigating but so far we have sent the following letter to the head of the MSP Alcohol Unit as well as a copy to the service technician, Mr. Marvin Gier. We have asked them to preserve the instrument so that anyone testing on that instrument who is seeking to vindicate themselves can have an independent inspection," says DUI attorney Mike Nichols of East Lansing. The question would be: at what point was the instrument unreliable but appearing to give readable results. A readable result would be when you receive a number, but it is not a valid number. Think about the time that you step on the scale and you think to yourself “there is no way I lost that much weight.” Your scale gave you a reading, but was it valid?

The police agencies that would use the Clinton County datamaster DMT include, Clinton County Sheriff Department, Bath Township Police Department, Dewitt Township Police Department, Dewitt City Police Department, St. Johns Police Department and Michigan State Police Department. Sometimes, even the East Lansing Police Department may use it if they make an arrest on the Clinton County or "annexed" portion of East Lansing.

We pride ourselves on holding the government accountable and pursuing a result in every case regardless of what the evidence may appear to be at first blush. We are committed to results. Contact Mike Nichols, who wrote the book on drunk driving in Michigan, 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.