Michigan Criminal Defense Lawyer Blog
An unfortunate part of my caseload, as a Michigan driver’s license restoration lawyer, is handling ignition interlock violations. I have written about the various kinds of violations in some detail, but always from the point of view of the lawyer in my role of representing someone at a hearing before the Michigan Secretary of State Administrative Hearing Section (now the AHS, formerly the DAAD). In this article, I hope to reach out to someone looking for an answer to a question like “What should I do right now?” If your machine has just given a false-positive reading, or you have had something like a start-up failure, a missed rolling retest, car trouble (like a dead battery) or work done on the car, let’s quickly look at some steps you can take to immediately make things better.
Start-up failure: If you have a start-up failure, you need to retest right away. Rinse your mouth out with water, wait a few minutes, and then try again. Whatever else, DO NOT just leave your car and go to work or school. I don’t care if you have the President of the United States waiting for you, if you cannot get a clean test and start your car, get your butt to the nearest police station and take a PBT (portable breath test). It can cost anywhere from $5 to $15, but if you have not been drinking, this will be the best money you ever spent. That PBT needs to be done right away; a test taken an hour after a failed interlock test is pretty much useless.
DO NOT sit on the phone wasting time with the interlock company; go get that test now. The sad reality is that pretty much all the time you will spend on the phone with the interlock folks will do nothing. I have NEVER seen a violation situation where anything useful came from time spent on the phone with the interlock people, and I’ve handled more interlock violation cases that you could count. At best, they’ll tell you what I just did. They have no magic “fix” they can send down the line, and no way to instantly verify that you haven’t been drinking. They are terrible at documenting anything; in any case where I need to prove a person made calls to his or her interlock company, I have the client pull his or her phone bill, although that “proof” is almost never directly important. Even then, all we can prove is that a call was made. Think about it; even if the interlock people took copious notes, all those notes would say is something like “Customer called and claimed he/she wasn’t drinking and that unit malfunctioned. Told customer to rinse mouth and retest and/or take breath test at nearest police station.” That is of precisely zero value in proving that you didn’t drink, while precious time you could spend actually spend getting a breath test that proves your claim that just ticks away.
Positive rolling retest: This should be treated the same way as a start-up failure, to the extent possible. In the real world, people often blow a positive number for a few minutes here and there, but when those numbers are really low and then they go away by the next test, and there is no violation. If, however, your results cause a violation, or don’t dissipate quickly, the key thing is to get a PBT test right away. If some circumstance prevents you from getting a PBT within a very short period of time, then get an EtG test that same day, or the next. If you’re unclear about where to go, chances are you can call the probation department at the court where you had your last DUI, or even the probation department of a court near wherever you are, and find out what lab or testing facility they use to have these tests done. Most EtG tests will go back a few days to prove you haven’t been drinking.
We can save any debate about the scientific reliability of these tests for later because we’re not in a probation violation situation, and the DAAD, who is all that matters right now anyway, will generally look favorably upon a valid lab test like this. It may be a hassle to figure this out, and then find the place and get them to figure out how to handle your test privately, because they pretty much exist to do regular testing for people under court jurisdiction, but you’re just going to have to plod through this and get it done.
It is not necessary to get an EtG test as any kind of backup to a PBT test if the PBT test was taken immediately after the problem. From my point of view, “immediately” is measured in minutes. Getting to a police station in 10 or 15 minutes is the best; 20 to 30 minutes is okay, and as you get near an hour, then the results tend to lose value and relevance. If it was me facing a positive test, I wouldn’t bother taking a PBT after 45 minutes, and would opt for the EtG test, instead.
Skipped rolling retest: There can be a lot of reasons why you missed, but the DAAD is only going to care about the fact that you missed. The point right here is to be able to prove that you weren’t drinking at the time of the missed test, and not fixing the reason why you missed. Even if your machine is malfunctioning, that can be addressed later. Right now, the key thing is to get a test showing you are/were alcohol-free. The worst thing you can do is shut the car off before you have another chance to test again. In other words, if you missed a test, and then arrived at your destination a few minutes later without having tested again since the miss, you want to make sure that you DO test again before you cut off the power to the car and leave. Here’s where you’re going to have to think on your feet, because if you just missed by accident, and you don’t think that there is anything necessarily wrong with the machine, then keep driving until you provide another sample. Take pictures of yourself testing, and take pictures of the handset and the reading so that you can prove it was you providing the clean sample after a missed test. Of course, a timely PBT test can only help here, as well.
If you suspect your device is malfunctioning, get over to a police station right away and take a PBT. For all the explaining people do about having to get to work and not be late, the real cost of an ignition interlock violation is more hassle, time and money than you will ever make in a day at work. On top of that you’ll go at least 8 to 12 weeks without a license until you have your violation hearing. Moreover, mere excuses don’t fly in a violation hearing: If you don’t have adequate proof that you weren’t drinking, you may very well lose your license all over again. I can hardly think being a bit late somewhere is worth all that. In other words, you have to take care of this situation first. Always be on the side of caution, and to and get a PBT test. A timely test PROVES you had no alcohol in your system. Lots of machines malfunction, or seem to malfunction, only to test out later as “fine” or being in proper working order. You sound a lot more believable if you say “The machine screwed up – but here is my test anyway,” and then it turns out the machine is later found to be okay.
Power failure: This results in a violation called a “tamper/circumvent.” The biggest frustration here is that most people will try and do everything right, only to wind up getting violated anyway. This often happens when a person has to take his or her car in for work, and he or she calls the interlock company first, who then tells him or her what to tell the shop. The person will then tell the shop what the interlock company said to do, and will receive an assurance that it will be okay. They get the car back and a few weeks later – BOOM! – there’s a violation in the mail. Having seen this situation countless times, here’s what I would do if I was in the situation:
First, I would document everything. It would be great if this was done beforehand, but chances are, if you’re reading this, it’s because the work was done some time ago and you now have a violation. Beforehand, I would take pictures of everything and even get the shop to sign a note indicating you told them what the interlock people told you to provide by way of instructions.
After the fact, you need receipts and credit card statements. You need to gather proof about exactly when you took your car in, or it had a mechanical problem. If you went to your car in the morning a discovered a dead battery, then you should pull the phone records of the calls you made when you went back in to get help.
In cases involving start-up failures and missed retests, the person will usually know, right then and there, about the problem. With tamper/circumvent violations, everything can proceed as if it worked just fine, and then a violation arrives, weeks later. There is nothing that can be done about that part of things beyond keeping your cool and gathering all the evidence you can.
As if these violations aren’t expensive and inconvenient enough, you can’t just show up to a hearing and try to explain what happened; as I noted above, simple excuses don’t work. Instead, you must prove yourself. The hearing officer is still under that negative mandate in making a decision (remember, the rule governing license appeals instructs that, “The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence…”) and a violation is technically the reinstatement of your original revocation. To put this in perspective, I once handled (and won, of course) a tamper/circumvent violation. In the course of my dialogue with the hearing officer, he noted that some years before, he had presided over a case where it was discovered that a very short, (a few minutes, at most) power disconnect happened to a some guy who had found a way to rig up his interlock unit so that no matter what he blew into it, the machine would read out that he was clean. In other words, the guy had found some way to bypass the actual detection of alcohol, and he could drink to his heart’s content, blow in the machine, and produce all zeros.
This guy was obviously an exception, but the upshot of this is that the hearing officers have to treat each violation as though the person had been drinking and/or was otherwise up to no good, and then hold our for him or her to PROVE otherwise. Even that isn’t necessarily enough. Unless you can show how your machine malfunctioned if you miss a rolling retest, the actual violation is for missing the test, not being positive for alcohol. While we can usually squeak by, the first time, by proving, to the extent possible (there are certain ways I can prove a person didn’t drink going back several months) that you did not drink, the hearing officer is going to point out that it was missing the test that caused the violation. Proving you hadn’t consumed alcohol is helpful, and obviates the ultimate concern, but it doesn’t really answer for the missed test.
Think of it this way: Imagine you are hired as a lifeguard at the indoor pool of a fancy hotel. One day, nature calls and you’re away from the pool for 5 minutes. Later, in reviewing video of the pool area, your boss sees this, and calls you out on it. He or she reminds you that you your job is to be there, by the pool, no matter what. You point out that no one was in the pool, and that ultimately, there were no incidents of any kind. Your boss fires you anyway, and reiterates that you were hired to keep guard over the pool; the fact that nothing bad happened is all well and fine, but your obligation was to be there, right by the pool.
That’s pretty much the same thing with a missed retest. Part of the deal with the DAAD is that you test when prompted. Those tests, of course, need to come up clean, but they also need to taken when required.
Even though these violation situations can seem complicated, our takeaway here is simple: Get a PBT immediately. If you can’t or didn’t do that, get an EtG test within a day (or two, at the most). Document everything. Get phone records, receipts, credit card slips, and anything else that could help. Do NOT waste time on the phone with the interlock company, especially when you first run into trouble. If you look at all the stuff I have written about Michigan driver’s license restorations, you can see that it is about 1000 times more than every other lawyer combined. If I were wrong about any of the stuff I write, I’d have been shut down long ago. I have to be accurate with what I publish because I am ultimately beholden to the State Bar of Michigan for my law license. With respect to this article, you can take what I’ve said to the bank. For your own good, take this advice as priceless: your interlock company can NEVER provide any proof that you didn’t drink. If you’re reading this because you have a startup failure, a rolling retest failure, or a skipped rolling retest, GO GET A PBT TEST RIGHT NOW!!! If that window has closed, or even if you’re not sure, and even if you get a PBT test an hour or two later, get an EtG test, as well. You can’t overdo it proving that you have been alcohol free. That kind of proof, and not mere verification that you spoke with someone from the interlock company will help in your violation hearing.
Nothing you say or do with the interlock company will prove this. Everything they can do for you (and that’s usually nothing, or very little anyway) can be done later. The most important thing isn’t to find out what’s wrong with the machine, or have someone come out and fix it, but rather to get proof that you have been alcohol free at the time a test was failed or missed. Believe me, the interlock companies suck at making notes of who calls. If you plow ahead on the phone anyway, then what I’ve said should start to make sense to you as you get frustrated on the phone with whomever you get and you feel like you have to yell at that person to note your call, or connect you with a supervisor, or whatever. The very fact that you don’t get transferred to something like an “error department” or the “false-positive verification desk” is a big clue. Hang up the phone and get a test; it will do more for you in the long run than 10,000 hours of phone calls to the interlock people ever can.
Enough reading. Go get that test. If it’s too late (or even if you wonder if you may have waited too long) for a PBT test, go find and take an EtG test. It’s the best money you’ll ever spend.