State of Michigan Breathalyzer

Several Michigan State Police technicians have been charged with felonies for improperly calibrating breathalyzers. We stand up to inexperienced, sloppy, and crooked police officers.

Your Michigan Breathalyzer Test Results Might Be Invalid

On Thursday, May 21, 2020, Michigan Attorney General Dana Nessel filed charges against the two technicians that the State of Michigan contracted to service all DataMaster DMT breath alcohol testing instruments for the Lower Peninsula. In other words, the individuals tasked with maintaining and servicing the breathalyzers used in Operating While Intoxicated prosecutions in Michigan are now charged with several counts of criminal fraud arising from their alleged failure to maintain and service these machines properly. Bringing charges against fellow officers is a significant admission by the State of Michigan that the breathalyzer machines serviced by these individuals may be unreliable and, as a result, could significantly impact Operating While Intoxicated prosecutions moving forward.

By way of context, the Michigan State Police (“MSP”) contracted with Intoximeters Inc. in September 2018 to provide ongoing maintenance and repairs and 120-day on-site inspections of 203 DataMaster DMTs in Michigan. In January 2020, it became apparent to MSP that two of the three Intoximeters Inc. technicians tasked with maintaining and calibrating the DataMaster DMT machines fabricated records regarding mandatory maintenance on multiple machines in the Lower Peninsula. Although MSP took over the servicing of the DataMaster DMT machines statewide on January 10, 2020, breath test results obtained before that date must be scrutinized by an experienced criminal defense attorney to determine the reliability of the test.

What is the Intoxilyzer 9000? Why is this Important?

The Intoxilyzer 9000 is the breathalyzer machine used by law enforcement across Michigan when a driver is suspected of being under the influence of alcohol. It determines how much alcohol is in a driver’s blood using an infrared light source to measure the amount of alcohol in the air the driver provides in a breath sample (exhales). Michigan law requires an accuracy check to be performed on each Intoxilyzer 9000 machine in operation every week and a 120 on-site inspection.

The weekly accuracy check involves the machine running an ethanol dry gas solution containing .08 grams of alcohol per 210 liters of vapor. The tested value of the external standard must be within .004 or 5%, whichever is greater, of the expected value for the test to continue. Generally, each law enforcement department will have an officer trained and certified to perform the weekly accuracy tests. However, the 120-day inspections are more complicated and require a Class IVA or IVB Operator to inspect the accuracy of the machine’s calibration using a wet bath solution. If, during the 120-day inspection, the operator determines that the machine is not calibrated correctly, they will take the machine out of service to be maintained and calibrated to ensure that future test results are sufficiently reliable.

An Intoxilyzer 9000 Machine Must be Reliable

Law Enforcement officers are generally trained just enough to operate the Intoxilyzer 9000, but not enough to actually know how the machine operates or the science supporting the admission of the test results in a court proceeding. The prosecutor must lay a proper foundation for a breathalyzer result to be admissible in Michigan. This foundation includes the qualifications of the operator/officer who admitted the test, whether they adequately followed required procedures, the timing of the test, and whether the Intoxilyzer 9000 used is reliable.

If you can show that the machine was unreliable at the time of your test, the test results must be suppressed (meaning that it is not admissible in court). Prosecutors often rely on the operator/officer who performed the test to testify that the machine was tested weekly by a Class III or IV Operator and inspected by MSP every 120 days. However, such testimony is insufficient to establish the reliability of the breathalyzer machines used before January 10, 2020. Even the State of Michigan has acknowledged that two of Intoximeter Inc.’s employees who performed the 120-day maintenance checks committed fraud.

Are a breathalyzer and a preliminary breath test (PBT) the same?

A Michigan breathalyzer and a preliminary breath test (PBT) device differ. The small device officers use on the side of the road during an OWI investigation is a PBT. The results of the PBT test are used to establish that there is probable cause to make an arrest. The results of the PBT are not admissible as evidence to prove the driver was intoxicated while driving. Once someone is arrested, they are asked to take a breathalyzer test at the police station. The results of the breathalyzer are admissible as evidence at trial. Refusing to take the PBT test is a civil infraction. Refusing to submit to the Intoxilyzer 9000 breathalyzer test results in six (6) points on your driving record and the loss of driving privileges for one year, called an Implied Consent Suspension.

Michigan OWI Defense Attorneys With Experience Attacking Breathalyzer Results

If you or a loved one has been arrested based on allegations of drinking and driving, speaking with an attorney who knows the law is essential. When there is no room for errors and false promises, the attorneys at LEWIS & DICKSTEIN, P.L.L.C. will not let you down. If you call us for a free consultation, we will review your situation, identify areas of the government’s case that are susceptible to attack, and develop a winning strategy to handle your case. Rarely does hiring a lawyer fit into someone’s planned budget. Our legal fees are fair and affordable yet reflect our high level of service and extensive experience.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.