Michigan Criminal Defense Lawyer Blog
Ignition interlock violations are an unfortunate fact of life for many people on a restricted license. As busy Michigan driver’s license restoration lawyers, we do all we can to help our clients avoid getting a violation in the first place, and will even try and head one off, if possible. However, the sheer number of people required to use these devices at any given time means that there will always be a lot of violations. Inevitably, a sizable part of our caseload is made up of interlock violations.
As much as I want to (and, in other articles have tried) to write about how to avoid getting violated, the problem is that nobody goes online and looks for anything about ignition interlock violations until after there has been a problem. Although that’s probably the case right now, just in case the reader finds this piece soon enough after something like a missed or positive breath test, please follow the Secretary of State’s advice that you either promptly get a PBT test at a local police station, or at least get an EtG urine test the same day as any positive or missed test. And yes, they know there is a camera on your interlock unit, but they still prefer an independent test, anytime you miss or test positive.
Part and parcel of being a busy license restoration practice is that we do, in fact, see it all. I can honestly say that we have had numerous cases where, unbeknownst to the client, his or her camera somehow moved out of aim and was not pointing directly at the face, and therefore the pictures that accompanied all the relevant breath samples did not clearly identify him or her as the person providing them. In fact, in one case, proving it was my client who re-tested clean turned on the distinctive watch he was wearing. Can you say for sure that, right now, that your camera is still perfectly aimed?
Given that most people reading this will be well past the time to get either a PBT or EtG test, the question really boils down to, what can we do about a pending ignition interlock violation? The answer, of course, is typical for a lawyer, but still accurate: it depends. Although the big concern, anytime there is an interlock violation, is that the person was drinking (this is why the Michigan Secretary of State strongly advises getting an EtG or PBT test), focusing solely on alcohol misses the point, in a big way.
When you really analyze things, it becomes clear that nobody gets violated for drinking. Instead, they get violated for failing to follow the procedures and rules governing interlock use. In cases like a missed or positive test, the violation is as much for failing to prove compliance, meaning failing to prove a person was not drinking, as much as anything else. Let me explain:
Being on the interlock is sort of like being a party to a contract between yourself and the Secretary of State. If you got a restricted license after multiple DUI’s (whether through a license restoration or from a sobriety court), it’s as if the state has offered you the ability to drive, but with a bunch of strings attached. You don’t have to agree to any of it, but if you don’t agree to all of it, then you get no license.
Think of it this way; you don’t have to agree to show up at your job and work, but if you don’t, then you won’t be getting a paycheck.
As far as the restricted license goes, the state has certain rules about having and using an interlock. The interlock is designed to both prevent the car from being operated by someone who is over a certain BAC limit (in Michigan, it’s .025) AND to monitor the breath samples of the person using it, and to keep a record of that. After multiple DUI’s, the only people who are re-licensed by the Secretary of State are those who can prove they’ve quit drinking for good. Accordingly, any such person who EVER drinks (at least while on the interlock) is going to have his or her restricted license taken away.
As a side note, in order to bump a restricted up to a “full” license, a person is going to have to prove that he or she has both the commitment and the ability to remain alcohol-free for life and never drink again. In other words, a person has to prove that he or she is genuinely sober and is likely to remain so.
Among the rules for using the interlock, a person must pass an initial test to start the vehicle, and then retest within 5 minutes of any request to do so. Also, he or she must never tamper with or circumvent the proper connection or functioning of the machine. Important here is that it is the person’s responsibility to make sure his battery always has sufficient power and does not die out, because if it does, and the interlock loses power, he or she will get a “tamper/circumvent” violation.
When a person successfully complies with all of the state’s requirements, then they’re keeping their end of the bargain. Keep that up, and everything will be fine.
However, if a person does have a problem, like missing a rolling retest, then he or she will be violated. Underlying such a violation is, of course, the idea that a person isn’t proving that he or she didn’t drink. Even if a person takes and passes a retest only a few minutes later, thus proving that they didn’t drink, that doesn’t erase or negate the violation, however.
When you get right down to it, the violation is for missing the test, not for drinking. Sure, the idea of “drinking” is kind of all balled up into this, but it’s the failure to timely provide the breath sample that’s the problem.
Here’s my favorite analogy that helps explain this: Assume you’re hired as a lifeguard for the pool at a hotel. The boss tells you that you are supposed to be in the big chair from 9 to 5, except for lunch from 12 to 1, when the pool will be closed. If you need to use the bathroom, you are required to call the manager, who will have someone take your place. Under no conditions are you to leave the pool area until your replacement is present.
One day, the boss has to review some security cam footage of the pool area, and he notices that on several occasions, you left your post for a few minutes each time. He calls you in, and you explain that you knew there were no guests in the hotel, and certainly none in the pool area, so you went to the bathroom or were in the pool storage area. You point out that nothing happened, and that the security cam footage shows that nobody came into the pool area, anyway.
The boss responds by saying that the terms of your employment require you to be in the chair, or at least in the pool area, at all times. Sure, it’s great that nobody drowned or had any trouble, but when you took the job, you agreed to be in your designated area all day, not think your way out of it and then come back and explain that nothing happened when you were gone.
Anyone required to use the interlock is the lifeguard, and the Secretary of State is the hotel boss.
Thus, when you’re violated for a missing a rolling retest or a tamper/circumvent, the fact that you can show you weren’t drinking is helpful, but it doesn’t “excuse” the violation.
Likewise, if you do test positive for alcohol, the fact that you provided a clean breath sample right away is helpful, but the state essentially mandates that you obtain an independent breath or urine test sample (this is in the part of the order granting your appeal, and set forth in the section about proper ignition interlock use).
In other words, a subsequent clean breath sample on the interlock is all well and fine, but what if you didn’t get a PBT or EtG urine test? What if your battery did die, without fault on your part, and you have receipts to prove that you replaced it?
Even though you may not have been drinking, you are still in violation. You have to challenge this, successfully, in order to get your license back.
That’s where we come in. It’s not as if you go to a violation hearing and the only question you’ll be asked is “what happened?” Of course, you’ll be asked about the violation, but every hearing officer will essentially review your whole case all over again. If you’re not prepared for that, and don’t know how your hearing officer will proceed, what’s important to him or her, and the specific questions he or she is likely to ask, then you’re flying blind.
We’re sometimes asked, “Do I need a lawyer for this?” Legally speaking, no. Nor, for that matter, do you need a dentist to pull your own tooth or do a filling, but doing those things on your own is not a good idea, either.
It gets worse before it gets better. When you go in for a violation hearing, the hearing officer can, of course, simply deny your appeal and then your license stays revoked, you lose credit for any time on the interlock, and you have to wait at least a year to start all over again. However, the hearing officer can also extend your time on the interlock, and require that you serve anything up to another full year on it.
We need to avoid that, and doing so involves more than just showing up and saying, “I wasn’t drinking,” or “my battery died.”
What’s our takeaway here? Obviously, it’s better to avoid an interlock violation if you can. If something does go wrong, promptly take the state’s recommended corrective action.
If you didn’t, and it’s too late, NEVER give up. There are still things we might be able to do to show you weren’t drinking, if you’re alleged positive or missed test occurred within the last month or so.
If your interlock readings weren’t caused by drinking, then, by all means, appeal the reinstatement of your revocation so you can get your license back and get credit for all the time you already spent on the interlock. If you were drinking, then even though I’m not interested in taking your case, maybe we can use that as a teachable moment so you can get started on the path to real sobriety to do this all right next time.
If you’re looking to hire a lawyer, do your homework. Read around. Although this is a short article, within my blog, I have hundreds of license restoration articles. Using the search box, if you type in “interlock,” you’ll pull up dozens of pieces I’ve written specifically about ignition interlock violations, most of which examine the various aspects of them is fine detail.
When you’re ready, check around. There’s nothing better than speaking with a lawyer’s office to get a feel for what they’re like. All of my consultations are free, confidential, and done over the phone, right when you call. We are really friendly people who will be glad to answer your questions and explain things. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 586-465-1980.