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Thursday, September 30, 2010
By Michael Nichols
Categories: Michael J. Nichols, Drunk-Driving, OWI
By Michel J. Nichols, Author of the “OWI HANDBOOK” BY Thomson West
In some cases, the only evidence that can convict an accused of violating Michigan’s-drunk –driving-law is a chemical test. However, anyone arrested in suburban Lansing, including Lansing Township, Williamston, parts of Okemos or the Mason area based on a breath sample –the breath may have been sampled by a failing breath test instrument.
The breath test instrument currently in use by almost all Michigan police agencies is called the Datamaster. Ingham County uses a Datamaster, identified as instrument number 94001. Michigan has established “administrative rules” for breath testing (see http://www.nicholslawyers.com/In-The-News/ID/419/EAST-LANSING-OWI-DEFENDANTS-MAY-HAVE-A-CHANCE-FOR-A-REDUCED-CHARGE-OR-DISMISSAL-DUE-TO-DEFECTIVE-DATAMASTER). The law in Michigan also requires that a prosecutor must show that the person who administered a breath test is properly trained, that the test was properly administered and that the instrument was reliable. The manner in which most Michigan police agencies show the reliability of the is to admit into evidence the “simulation and calibration logs.” Weekly simulators of a known alcohol mixture of .080 must be performed to demonstrate instrument accuracy within .076 to .084.
In 2010, the “simulation and calibration logs” for the Ingham County Sheriff Department show some startling evidence of instrument failure or neglect within the department. For example, the instrument was simply “taken out of service” in March 2010 with no indication why. There is also a “time change” entry on the April log. That would make sense when considering that we “spring forward” the clocks each spring for daylight savings time. The only problem is that there are 2 entries: 1 in March and 1 in April reflecting a “time change.”
The police agency is also required by the administrative rules to have the datamaster checked every 120 days. The 120 day check entails an instrument simulation at 3 different known alcohol concentrations. Various other detectors are checked to determine whether they are working and the instrument is then certified by a representative of the manufacturer as “calibrated” on the log. 6 months passed in the second half of 2010 without any 120 day calibration check.
The most recent revelation is that the OD 33 records provided by the Ingham County Sheriff Department pursuant to a Freedom of Information Act (FOIA) request shows that there were just 2 simulations done in August. The last one done is August 9th. It reflects a test out of the acceptable range. Then, .075 is scratched out and .076 is written in. Any person arrested in the latter half of 2010 has an argument that the logs do not demonstrate reliability to satisfy Michigan law. There is no doubt that anyone arrested between August 16th and September 2 should plead not guilty and go to trial unless there is very clear evidence that the accused was impaired by alcohol.