Oakland County Circuit Court Judge Throws out .20 Breath Test on Felony Drunk Driving

Oakland County Circuit Court Judge Throws out .20 Breath Test on Felony Drunk Driving

  • April 11th, 2017
  • Patrick Barone
  • OWIDUI DefenseBreath Testing

An Oakland County Circuit Court Judge recently suppressed a DataMaster .20 evidentiary breath test result on a felony drunk driving case.  The judge suppressed the breath test because the police officer who administered the test failed to follow the laws and rules intended to assure that breath tests are reliable.  Because of the judge’s ruling, the prosecutor can no longer argue to the jury that the driver had an unlawful bodily alcohol level (UBAL).

The facts, in this case, are as follows: the driver was stopped for making an unlawful turn.  The driver had no valid driver license, smelled of alcohol and admitted drinking.  Subsequently, the driver was unable to perform to the police officer’s satisfaction on the field sobriety tasks, including the alphabet, backward count, heel to toe and horizontal gaze nystagmus.  This driver had two or more prior DUIs in his lifetime.  Based on Heidi’s law, with at least two lifetime prior DUIs, this arrest would make it a felony.  A roadside preliminary breath test indicated .123 on a “weak” sample.  Thereafter the driver was arrested for felony drunk driving.

Because this was a felony case, the driver was entitled to a probable cause hearing.  In Michigan, this is called an evidentiary hearing.  At an evidentiary hearing, the prosecutor bears the burden of proof, but only by the standard of probable cause.  This means prosecutor need only show, through witnesses and evidence, that the crime charged was probably committed.  Because of this, an evidentiary hearing is a much-abbreviated version of trial.  Nevertheless, at the evidentiary hearing, we did ask the police officer some general questions about his observation of the driver prior to the breath test. This was to set up a motion to suppress at the circuit court.

After the evidentiary hearing, the case was sent to the circuit court for further proceedings.  Then after the arraignment on the information, we filed our motion with the Circuit Court Judge asking him to suppress (throw out) the breath test results. In the brief supporting our motion we cited the relevant case law, and explained why, in our opinion, the breath test should be suppressed. This included a short written explanation about the relevant science that underlies breath testing. The prosecutor responded with his own brief offering his counterpoint, and arguing why the court did not need to suppress the breath test results.

As has been discussed previously on this blog, prior case law is relative to the 15-minute observation rule is largely against our position. However, these cases often must be determined on a case by case basis, and we believed that the line for inadmissibility had been crossed. In the end, the judge agreed, and that is why the .20 DataMaster breath test was thrown out in this case.

In a very lengthy and superbly argued written opinion, the judge indicated:

Clearly the plain language of the Rule does not require the officer to continuously stare at the Defendant and the officer may perform paperwork and other tasks. However, the officer “must be close enough to be aware of the person’s actions and conditions. Breaks in the observation lasting only a few seconds do not invalidate the observation if the operator can reasonably determine that the subject did not smoke, regurgitate, or place anything in his or her mouth during the break in observation.” At times the officer’s back was to the Defendant, and overall, he barely looked at the Defendant during the observation period. The Court does not quibble with the activities undertaken by the officer, but rather with the length of the “[b]reaks in the observation.” Being generous, the officer directly observed the Defendant a total of 3 minutes in the 15-minute period. No matter what dictionary definition the Court were to consult to define “a few seconds,” the breaks in observation far exceeded a few seconds, running into minutes.

Then, in conclusion, the judge wrote:

Unlike the cases cited by the People, the instant officer utterly failed to comply with the observational requirement, thereby dispelling any foundation. At best, the Defendant was observed for 20% of the mandatory 15-minute observational period. The plain language of the Rule provides that a human being (in the terminology of the Rule – a “class operator”) — not a camera ensures the accuracy of the foundation. Perhaps the Rule is antiquated — but it is the law until changed. Again, the Court will not graft onto it an exception that does not exist. Without a proper foundation, the evidence must be suppressed.

Judges are often not aware of the science that underlies the administrative rules. Because the administrative rules seem less important when taken out of the context of the science, we took the time during our oral argument on the motion to further explain the science to the judge.  This included an explanation of how partition ratio works, and how this was related to the 15-minute observation rule.  We also described how the DataMaster programming requires that four sample acceptance parameters be met to assure that deep lung air is being measured, and also why it is critical to measure deep lung air.  Finally, the DataMaster’s slope detection was explained to the judge.  These scientific principals helped the judge to understand why the 15-minute operation period is, in fact, a critical safeguard, not just some technical rule.  Furthermore, that if the administrative rules are not followed, then this makes the breath test unreliable, and therefore inadmissible. It is believed that this explanation and advocacy relative to the science lead to the judge concluding:

Unrecognized by the People is that the very “purpose of the administrative rules with respect to administering Breathalyzer tests is to ensure the accuracy of those tests.”[i] Accordingly, “[f]ailure to meet the foundational requirements will preclude the use of the test results.”[ii] Thus, “[wlhen the rules regarding Breathalyzer tests have not been complied with, the accuracy of those tests is considered sufficiently questionable as to preclude the test results from being admitted into evidence.”[iii]

This case demonstrates why it is important to select a lawyer with an in-depth understanding of the science underlying breath and blood testing, especially in the face of mostly adverse case law.  Applying this scientific knowledge requires that the video recording of the booking room, where the DataMaster test is administered, be obtained and carefully evaluated by a knowledgeable lawyer.  It is from this evaluation that defenses might arise, and drunk driving cases successfully defended.


[i] People v Boughner, 209 Mich App 397, 398 (1995). See also People v Tipolt, 198 Mich App 44, 46 (1993).

[ii] Boughner, 209 Mich App at 398.

[iii] Id. See also Triplot, 198 Mich App at 46.

3 Comments
  1. Great job educating the Court.

    Comment by William Hackett on April 11, 2017 at 7:30 pm
  2. Great work Patrick. Your clients are lucky to have chosen you

    Comment by Martin Baum on April 11, 2017 at 11:44 pm
  3. Thanks Marty, coming from you, one of the best trial lawyers I’ve ever observed and/or worked with, that really means something!

    Comment by Patrick Barone on April 12, 2017 at 5:46 pm


  • About the Author Attorney Patrick Barone is well-known and well respected throughout the legal community. As a professor, guest speaker and author he shares his knowledge of drunk-driving defense with lawyers and judges to help them better understand this complex area of law. Mr Barone is the co-author of two highly regarded books including Defending Drinking Drivers and Michigan DUI Law – a Citizen’s Guide. Also, Super Lawyers Magazine recently recognized his unique approach to law in their article “Walking in Their Shoes.”
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