Articles Posted in Breath Testing

Nearly all drunk driving arrests in Michigan consist of four parts; (1) some sort of bad driving leading to a traffic stop, (2) roadside or “field sobriety tests,” (3) roadside breath test for alcohol, or saliva test for drugs, and; (4) second breath or blood test to confirm roadside test.

Regarding roadside field sobriety testing, Michigan law has been moving toward requiring that field sobriety tests be administered according to the standardized protocol.  For example, prior Michigan cases have indicated that the Horizontal Gaze Nystagmus (HGN) must be administered properly and that the officer administering the test must be qualified to perform it. (Berger). Another Michigan drunk driving case indicates that an officer’s incorrect administration of the HGN test will lead to an inaccurate interpretation of the results. (Mullen).  So far, however, no published Michigan drunk driving case has defined “standardized field sobriety test” or required either strict or substantial compliance.

A newly amended Michigan drunk driving law changes that, at least temporarily.  This new law is part of the broader package of laws creating a pilot program pilot that aims to test the use of saliva testing to screen potential drugged drivers on the road side.[i]

If you were given a breath test after being arrested for drunk driving in Michigan, then it is important to have an attorney verify that the test was given properly.  This means verifying that all requirements were followed and adhered to.  A failure to do so can result in the test being thrown out of evidence.

An example of such a requirement is the 15 minute observation period.  If the police do not observe you continuously for 15 minutes prior to asking you to blow into the machine, then the test might be deemed invalid.

The police must also check your mouth before asking you to blow into the machine.  If they fail to do so and it can be show that something was in your mouth when you blew into the machine, then the test can be deemed invalid.

It is well known that the legal limit in Michigan is .08.  This means if the police breath, blood or urine test show that you are at or above .08, you can be convicted of DUI in Michigan – even if you are driving perfectly well!

It is not unlawful however, in Michigan or any other state, to drink and drive.  Drinking and driving becomes unlawful only if the prosecutor can show that the alcohol caused you to become impaired or intoxicated.

In order to drive safely, some people buy breath testing machines or breathalyzer apps to test their breath before they hit the road.  Trouble is, these apps can be wrong.  So wrong in fact, that they will say you are safe to drive when you’re really more than twice the legal limit.