Alcohol Testing Violations in Michigan DUI Cases

January 21, 2013

In the prevous article, we looked at how alcohol testing as a condition of release from Jail after a DUI Arrest is becoming common in the Courts of Macomb, Oakland and Wayne Counties. Of course, this is done to ensure (or, some might say, force) compliance with a "no drinking" condition of a person's Bond. Testing does not stop once the case draws to a close, however. Testing is very often ordered as a condition of Probation, as well. In fact, if you are required to test as a condition of Bond, you can pretty much count on being required to test through Probation, as well, although there is room to have the Judge make some changes to that, including cutting down the frequency with which you test.

Alcohol testing comes in several different varieties, but the most popular are breath tests (either through PBT's at a testing site, or samples blown into an ignition interlock system), urine tests, and a contraption called a S.C.R.A.M. tether. In general, testing is a lot like voice recognition software; it usually gets things mostly right, but often gets things wrong, and is never perfect. Unlike giving voice commands to your smart-phone, however, and winding up calling the wrong number, a bad alcohol test result can get you thrown in Jail.

Lab Testing 1.3.jpgAs a Michigan DUI Lawyer, I am contacted almost daily about problems with alcohol testing. I get calls about missed tests, bad equipment and positive tests. To be clear, many times the positive (or missed) test means that the person tested was, in fact, drinking, but even then, they need someone to get them out of a jam. Whether it's a false positive, an accurate positive, a missed test, or trouble with the equipment, alcohol testing brings lots of problems, and I have to solve them.

I am hired just about every week by someone who has run into problems with their alcohol testing. These "problems" are either alleged violations of Bond or Probation conditions. To help a Client facing an alcohol testing violation, I have to wear several hats: I have to be a Lawyer, of course, but I also have to have a working scientific and technical knowledge of what's involved in a particular kind of testing, and what can affect the results. This involves knowing, for example, how certain chemicals or medical conditions affect a person's performance on a particular a test, or why a false positive result occurs.

Beyond that, I have to be able to define the issue at hand (meaning bad equipment, bad result, or bad test) and then translate it to the Judge. Doing that means I need to be a diplomat and a negotiator. There are times when a Judge is going to get it wrong, and when I see that coming, I have know how to react to protect my Client. If a Judge refuses to accept that a test result is wrong, then that part of me with "diplomatic" skills won't press on in a way to make the Judge angry. In a Courtroom, I have to argue my case, but never argue with the Judge. Remember, the job at hand is to make things better; however wrong the Judge might be, arguing with him or her will only make things worse.

This is particularly true if the violation is for a positive test result that is accurate, meaning that someone tests positive for alcohol because they really did drink. This happens a lot, and, truth be told, "correct positive" results are a lot more common than "false positives." An accurate positive test result occurs because no one thinks they'll get caught. Either they try and "time" their drinking, or they take a chance that they won't be called in for a test on a certain day, only to find out they called it wrong. In these cases, my whole focus is on damage control. Let's be honest, when anyone in this situation calls me, they have one thing on their mind - staying out of Jail. Unless I get lucky, and find some glaring evidentiary defect in the test (not likely), I'm going to be the only thing that stands between my Client and a stint in the pokey. I need to find the magic spot in such a mess and use it to keep my Client from getting locked up.

Other times, the violation is based upon a false positive, or is otherwise excusable because of some defect in the equipment used or the method of testing or analysis. This is where a technical understanding of the methods used to test is so very important. The ankle bracelet (S.C.R.A.M. tether) that is supposed to detect alcohol from the skin is so fraught with problems that a local Judge published an article in the Michigan Bar Journal explaining why Scram Tether is essentially scientifically unreliable. The "ubiquitous" EtG test is no more reliable, either. These tests produce false positive results. Some people are allergic to the plastic used on the contact part of the S.C.R.A.M. tether, and suffer sever skin problems. Worse yet, while their skin is turning red and flaking off and a wound is developing, the unit "detects" alcohol. In such a case, the "alcohol" is a byproduct of the acetone produced from the decomposing fat in the tissue.

Whether a violation is the result of a faulty result, or someone legitimately tests positive due to alcohol they consumed, I am hired to make as much of the problem go away as possible. I understand how unfair that can sometimes feel, especially when a person has a legitimate reason for missing a test, or winds up testing positive for alcohol even though they didn't drink. It's inconvenient; a person facing a violation for a missed or positive alcohol test has to hire a Lawyer (I charge $1400 for a District Court violation, and $1800 for a violation in a Circuit Court) and then go before a Judge and put their best foot forward. But it is what it is, and just hoping for the best is not much of a plan.

If there is a shortcoming in the equipment used to test, or with the test itself, or if the positive result is arguably wrong, then there is work to be done to show that. On the other hand, if the test result is positive, but correct, then I have to swing into that diplomat-salesman mode, and convince the Judge that, although my Client made a regrettable mistake by drinking, but shouldn't be put in Jail for it, and can prove themselves, if given another chance. This becomes more difficult, of course, when a person has already by violated once or twice (or even more times) before. The point here is that for all the Legal acumen I need in certain situations, in this one, I need to have a kind of irresistible charisma that deflects the Judge's anger and disappointment away from my Client.

There is a good chance that anyone who has read this far is facing a violation situation, or is looking around for someone close to him or her that is. The world is full of Lawyers holding themselves out as "tough" and "aggressive." Honestly, those tired old slogans carry about as much weight as a restaurant that promises "sandwiches on bread that isn't stale." The search for the right Lawyer involves some legwork. Read what the Lawyer has written. If it sounds too good to be true, it probably is. If it sounds like "throwing in the towel," then it probably is, as well. The right Lawyer will never come cheap, as cut-rate Fees never buy first rate services or talent, but then again, getting "soaked" is no guarantee of quality, either. Look for a Lawyer who appears regularly in the Court where your violation is pending. For my part, I ONLY handle these kinds of cases in Macomb, Oakland and Wayne Counties. If you call a Lawyer's Office during regular business hours and your call isn't answered by a live person, then consider that. It may not matter to some people, but I cannot abide having to leave a voicemail message. I won't do business with anyone who doesn't have a live person answering the phone, and I expect that person to be able to answer some questions for me. The larger point here is to do that legwork, or "homework," and find a Lawyer with whom you're comfortable.

In the end, there is really no way to conclude any discussion of alcohol testing with a "warm and fuzzy" wrap-up. It's an awful situation, and the only thing a person can do is try and make things better. That's something I do regularly, and rather well. If you find yourself in this situation, do your homework. Now that you've heard from me, perhaps I'll hear from you...