Michigan Criminal Defense Lawyer Blog
Michigan ignition interlock violations are a topic so important and so relevant that I feel I have to take it up again, even though I put up an article about them only about a month ago. In this installment, I want to address 2 particular situations: A missed test (called a missed rolling retest) and a positive for alcohol test (particularly when a person has NOT been drinking). It is my hope to help someone avoid a violation in the first place, but the information here will be directly relevant and useful even when that’s too late. In my capacity as a driver’s license restoration lawyer in Michigan, I have seen the number of violation cases explode in the last few years while these issues have grown to be a substantial part of my license appeal practice.
Let’s dispense with all the foo-foo background stuff and go right to the first thing you should NEVER do with an interlock unit in your car, which is to leave the car running and unattended. If you miss a test once the car is running, that’s called a skipped rolling retest. This is so basic and so important that the Michigan Secretary of State’s Administrative Hearing Section (called the AHS, and until recently known as the DAAD) includes specific instructions about this in the order granting a restricted license under a section called “Notice of Proper Interlock Use.” The problem is that many people don’t read this, or read over it so quickly they forget it, especially once the unit has been installed and they learn the basics of operating it. That’s a big mistake.
In the real world, people sometimes step out of a vehicle for a minute or two; the problem, however, is that in the real world, that minute or two can get away from you and become five or ten. The reason that the state goes through all the trouble of providing these instructions is not so that people will skip reading them and then wind up getting a violation; the whole point is to avoid this colossal outlay of time and money in the first place. This is real simple: DO NOT leave your vehicle unattended, even for a minute. The very week this article was written, I had a violation hearing for a real upstanding guy who had stepped out to brush snow off of his car, then wound up slipping on the ice; he fell down, cut his hand, and ran inside to bandage it. He came out to find he had missed a test by a few seconds. As explainable as his situation was (we won the violation hearing and also won his full, unrestricted driving privileges), he still had to go through the violation first, which meant his license was re-revoked (technically called a “reinstatement of original action”) all over again. Beyond trying to avoid these situations in the fist place, what do you do if your breath test ever comes back positive, or you otherwise miss a retest?
If you EVER provide a positive alcohol sample, go and get a PBT at a police station right away – and that means immediately, not later. If you cannot get to a police station within a short time (meaning within minutes, not hours), then get an EtG urine test that same day. The single biggest mistake people make, most often because they know they haven’t been drinking, is to provide a test with a positive-for-alcohol reading, then provide a clean test a few minutes later, and think, “Whew, now everything is okay.” No, it’s not. You have to prove that YOU provided the subsequent clean breath test result. This means you must follow the state’s instructions (it’s not a coincidence that they provide them) and go get a PBT or an EtG test. This also, as we’ll see, applies in the case of a skipped rolling retest.
You need to provide an identity-verified clean test result right after you miss a requested retest. Unless you have a camera in your interlock handset, the only way to do this is by getting a prompt PBT from a police agency or a timely EtG test. You can have the world’s greatest, most believable explanation for why you were out of the vehicle, but you need to be able to prove that you weren’t drinking, and/or that any subsequent, clean results were yours. Nothing does that except a PBT from a law enforcement agency, or, alternatively, a timely EtG test. Explanations after the fact aren’t nearly as persuasive.
For those who may be finding this out a little to late for any kind of “timely” EtG test, there are other lab testing options, but those go beyond the scope of this article. The big thing is NOT to wait to deal with the situation. If you’ve tested positive and it’s been more than a few days, it’s better to act sooner, rather than later, even before you receive notice of a violation. I could go on and on, but the main points of this article are supposed to be simple and straightforward. Do NOT leave your car running, not even for a second. If you do, and you miss a test, get a PBT right away. If you don’t get a PBT test right out of the gate, then get an EtG test within the day, or the next, if you simply cannot do it otherwise. Being busy is no excuse because you WILL lose your license, at least for a while, so imagine the huge bucket of suck that will be. If everyone you know is glad to have you off their backs for rides, imagine how happy they’ll be to hear from you again because you were too busy to get a prompt test. You’ll be even busier firing up the old “transportation network.” Good luck with that…
If you have tested positive, even for just a low level of alcohol, and thereafter provided a clean test, you still need a PBT or an EtG test. Even if you don’t get violated, you will have to prove you weren’t drinking when you go back to get your full license, and all the explanations and letters and stories in the world do not add up to that PBT or Etg paper proving you tested clean. In a way, this whole article is really an admonition to read, understand, and then follow the “Notice of Proper Interlock Use” instructions included with the order that granted your restricted license. Unfortunately, if you didn’t read it when you got it, you may be reading this article for that very reason.
If you are facing an ignition interlock violation, I can help. To be perfectly clear, I am not interested in trying a “Hail Mary” pass for anyone who was drinking and then got caught. That’s the interlock doing what it’s supposed to do, and I won’t present a BS defense for anyone. I want to help people who are genuinely sober prove that a violation is a fluke and a mistake. If that sounds like you, do your homework, read as many lawyer articles as you can, and then pick up the phone and call around. My office can be reached Monday through Friday, from 8:30 to 5:00, at 586-465-1980. We’re here to help.