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Can Breath Test Results Be Suppressed for Failing to Follow Calibration Requirements?

Dec 22nd, 2016 Breath Testing DUI Penalties Can Breath Test Results Be Suppressed for Failing to Follow Calibration Requirements?

Yes, in certain circumstances, a breath test result in a drunk driving case can be suppressed for failure to follow all existing calibration requirements.  Therefore, it is important for your drunk driving defense lawyer to confirm that all existing requirements for calibration and calibration checks have been followed.

All police departments in Michigan use the DataMaster DMT to test the breath of persons arrested for OWI. (Operating While Intoxicated).  To keep the breath test equipment in good working order, the State Police of Michigan have promulgated rules and regulations that the police must follow. These rules provide for example that the calibration of the equipment must be checked once each calendar week.  Also, every 120 days a Class IV inspector must check the equipment.  The 120-day inspector checks the calibration at several different target values. Other states have slightly different rules.

For an example of a case where a failure to follow these rules lead to the suppression of the results, see Stiers vs. Director of Revenue, 477 S.W.3d 611 (Miss Sup. Ct 2016).  Here the driver was stopped for swerving between lanes. She submitted to a field sobriety tests and then was arrested for DWI.  She submitted to a breath test on an Alco–Sensor IV, which measured a .172–percent blood alcohol concentration (BAC).

According to Mississippi law, Ms. Stiers’ driver’s license was thereafter summarily suspended.  This suspension stayed while she pursued administrative review of the driver’s license sanction.  The suspension was affirmed administratively, and Ms. Stiers then filed for a de novo trial by the Mississippi circuit court. Ms. Stiers’ objected to the admission of breath test as evidence that her BAC was above .08 percent at the time of her arrest.

The basis of this objection was that the breath analyzer used to administer her breath test was not calibrated in accordance with the version of 19 CSR 25–30.051.2 in effect at the time of her 2013 arrest. At that time, subsection 2 stated that “the standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values: (A) 0.10%; (B) 0.08%; and (C) 0.04%.”

Ms. Stiers specifically argued that the test was invalid because the breath analyzer used in her case was calibrated using only one solution, a fact that was undisputed.  The state argued that the word “and” really meant “or,” and therefore, single point calibration was sufficient.  Furthermore, that the emergency revision of the of this regulation, requiring single point calibration, should be applied. The court agreed with Ms. Stiers and therefore excluded the breath test results.  Furthermore, the court found that without the breath test the State failed to meet their burden of providing sufficient credible evidence that Ms. Stiers drove with a BAC above .08 percent. Following an opinion by the court of appeals, this Supreme Court granted transfer of the matter for their consideration.

The Mississippi Supreme Court held that the validity of a breath test “necessarily must be determined and fixed at the time the test is conducted. To argue otherwise ignores the fact that the calibration is not simply used as a factor when considering the admissibility of a breath test result in court. To the contrary, it is used as the basis for suspending or revoking an individual’s license.”  Furthermore, that because a breath test result over the legal limit has a “substantive effect” on a person’s right to drive, and “it is because of that effect that the calibration of the machine used to test that person’s breath must be validly performed.”  This is part of the reason that Mississippi law provides that the person tested shall be provided with the results as well as “full information concerning the test.”

The court found that this law would be meaningless if the procedures didn’t matter or if they could be changed after the test was administered.  Specifically, the court indicated: “[W]hile such an opportunity might be convenient, neither the statutes nor regulations issued under it purport to give (the state) such unique retroactive authority to negate any prior mistakes made in maintenance of its machines used for breath tests.