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If You Were Convicted of Drunk Driving Based on a Faulty Breath or Blood Test – Good luck Getting it Reversed!

Sep 2nd, 2016 Breath Testing Blood Testing

When it comes to drunk driving cases in Michigan, things have changed a lot in recent years.  Pressure from the defense bar, as well as pressure from the scientific community, have both lead to changes in the ways breath and blood tests are determined or reported.  Here is a very short list of changes that have been made:

  1. Calibration curves for blood alcohol determination are now based on NIST traceable standards. Previously, calibration curves where based on calibrators hand made by mixing pure ethanol and distilled water.
  2. Calibration checks on breath testing devices are now done using dry gas rather than wet bath simulation. Previously, the simulator solution was hand made by police officers with very little training.
  3. Blood test results now must be accompanied by a range denoting the amount of inherent uncertainty in the blood test result.
  4. The lower level of detection for THC has been lowered and the reported uncertainty is at least 30% (in either direction).

What happens if you were convicted of drunk driving in Michigan after a change in the scientific method?  Is it possible to challenge that conviction and possibly even have it reversed?

In examining this question, the first thing that you must understand is that you can almost never challenge a drunk driving case on appeal in Michigan if you plead guilty.

The next thing that must be understood is this; even if you can get in front of an appeals court, they must be satisfied that a jury would not have convicted you of drunk driving without the breath or blood test.

Assuming you may be able to show that after a Michigan drunk driving trial you were convicted and that the jury would likely not have convicted you without the breath or blood test, then the question is can you even get in front of an appeals court; will they hear your appeal?  In most cases, the answer is a resounding “no.”  And this is unjust.

According to the Washington Post article entitled “How the courts trap people who were convicted by bad forensics

To explain why this is so unjust, some background is in order: Since the onset of DNA testing in the 1990s, we’ve been slowly learning that our criminal justice system frequently comes up short when it comes to keeping junk science and quack experts out of the courtroom. The landmark 2009 National Academy of Sciences report on forensics was clear on this point. From bite mark matching to hair and fiber analysis to “shaken baby syndrome,” the courts have done a poor job of demanding that experts be qualified and credible, theories be grounded in science, and statements of certainty be verified with statistical sampling before allowing such expertise to be heard by a jury.

Interestingly, the Washington Post also makes a point which has been previously made in this blog on several prior occasions:

Most forensic specialties aren’t actually sciences at all, but disciplines that were developed in police agencies and crime labs — not in the interest of pursuing knowledge, but in the interest of helping police solve crimes.

So what is a scientist?  An appropriate definition would be a person who investigates something and thereby adds information to the existing body of scientific knowledge.  According to Wiki, “a scientist, in a broad sense, is one engaging in a systematic activity to acquire knowledge.”

Unfortunately, though, forensic evidence is presented to juries as if the evidence is actually scientific, and that the people who testify about it are “scientists.”  And so to heighten the impact of their findings, they are given important sounding titles.  For example, when the laboratory technicians at the state lab testify, they are called “forensic scientists.”  Yet all the really do each day is mix blood samples for testing, then push a button so the instrument can measure the amount of alcohol or drugs present.  At best they are forensic analysts or forensic technicians, but they are most certainly not “scientists.”

If you have been charged with drunk driving in Michigan, then your best bet is to find and hire a lawyer who has what it takes to win the case the first time around.  Never depend or look for hope in your right to appeal, especially when it comes to scientific evidence, such as a breath or blood test.

Contact the Barone Defense Firm today for your FREE no obligation case review.  If you retain the Barone Defense Firm then you will have a lawyer who can help you discover if there are problems with the breath or blood test in your case.

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