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Breath Testing Rules and Regulations in Michigan DUI Cases

Dec 8th, 2016 Breath Testing DUI Defense

Michigan’s rules and regulations for breath testing are set forth by law and by administrative rule.  There are also a variety of rules and regulations contained in the DataMaster Evidential Breath Test Manual.  Together these rules and regulations are intended to assure that a breath test result is reliable and admissible in a court of law.  The problem is that these rules and regulations are often not followed.

The implied consent law in Michigan in Michigan Compiled Laws sec. 257.625a, provides that if you are arrested for drunk driving then you must submit to a chemical test, the purpose of which is to determine how much alcohol is in your body.  Most of the time, the police will ask you to submit to a breath test.  The Michigan chemical test rights provide that even if you took a breath test at the roadside, you must still submit to this second “evidentiary” breath test.

Specifically, the Michigan Vehicle Code, in section 257.625a provides:

(c) A person who submits to a preliminary chemical breath analysis remains subject to the requirements of sections 625c, 625d, 625e, and 625f for purposes of chemical tests described in those sections.

For a police officer in Michigan to lawfully give you an evidentiary breath test, he or she must be a class II operator.  The Administrative Rules governing tests for breath alcohol, promulgated by the Department of State Police Traffic Safety Division, provide that:

(b) A class II operator shall complete a 6-hour class II departmentally approved training course, obtain a minimum score of 70% on a written examination, and demonstrate proficiency in the operation of an evidentiary breath test instrument.

These rules are contained within the Michigan State Police DataMaster DMT Training Manual 2011.  This manual also contains information regarding the proper execution of various administrative forms like the OD-80 (breath test ticket) and OD-33 (breath test log).

The manual also contains information about running accuracy checks on the device, including simulator accuracy checks, as well as certain record keeping obligations. Finally, the manual contains information about courtroom testimony and information about how a police officer should prepare for an implied consent hearing.

Together the evidential breath test administrative rules and DataMaster DMT training manual set forth most of the requirements that the police and prosecutor must follow before having a breath test result admitted into evidence, and used against you in your drunk driving case.

Experience has shown that very often these rules and regulations are not followed by the police.  First, all an officer needs, to be “qualified” to give a breath test, is a 6-hour class.  Most of these 6 hours cover things other than administering a breath test.  Then, they only need to obtain a 70% score.  On this basis alone it’s fair to say the police get it wrong 30% of the time!

If the rules and regulations were not followed in your case, then this could form the basis to have the breath test results “suppressed” or thrown out.  This might lead to a reduction in the charges, or allow you to win your case at trial.


*Photo courtesy of http://vancouverpolicemuseum.ca/