In The News

Thursday, September 30, 2010

Why people arrested by the Ingham County Sheriff Department of violating the Michigan-OWI-OUIL-DUI statue in 2010 should plead not guilty

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.

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.