Michigan Criminal Defense Lawyer Blog
I seem to return to the subject of ignition interlock violations more frequently than ever, probably because they are on the increase and they are a growing part of my caseload. In some of my previous articles, I have examined many of the reasons that an interlock violation can be brought. In this installment, I want to examine 2 different things about violation cases – what you’re supposed to do after a violation like a missed or positive test, and how the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers, who hear these matters, can be at risk for what I call “violation fatigue.”
To keep this article short, let’s skip all the background analysis about the why and how of violations and begin with the proposition that when you win your license back, the order granting it also contains some very specific instructions about proper ignition interlock use. Unfortunately, many people, in the excitement of being able to drive again, stop reading at the point that tells them where to go to get the interlock installed, and don’t read all the way through to the section about proper interlock use. Others may read it, but either “skim” that section too quickly or otherwise forget most, if not all of it, because things seem to be working just fine and they’re not having any problems with the machine. At least for the time being.
And then something goes wrong. Most of the time, at least among my clients, whatever happens is NOT a result of consuming alcohol, and that can lead to a false sense of security. In other words, when a person knows that he or she has not been drinking, it can lead to them assuming that this situation will resolve favorably because they honestly did not consume any alcohol. That’s not enough. One of the main points of the proper use instructions is to make sure a person has independent, objective proof that he or she hadn’t been drinking when there is a problem. This applies when an errant positive test is quickly followed by clean retests, and even when there is no positive alcohol reading whatsoever, like when a person misses a rolling retest.
To make more sense of this, we first have to explain the idea of “violation fatigue.” Imagine that you are an AHS hearing officer. Every time you grant a driver’s license restoration appeal, you send out a notice that contains very specific instructions (some orders even say things like “THIS IS NOT BOILERPLATE…”) about how to use the interlock, prevent violations in the first place, and gather the appropriate proof if or when there is a problem. Despite that, every day, you have to deal with any number of people coming back in front of you for violations that would never have happened in the first place, if the person had followed those instructions. Worse yet, many of these people show up without any of the proof they should have obtained, had they followed the instructions about what to do when there is a problem. It’s kind of a double-whammy failure, the violation including a failure to follow any and all instructions whatsoever.
So it goes, day-in and day-out, people whose licenses you’ve reinstated keep returning for violating some part of the ignition interlock thing. Many, if not most of those violation should not have happened in the first place, like a skipped rolling retest, or a positive alcohol test because someone may have eaten or drank something (not alcohol) too soon before using the interlock device. On top of that, many of these people don’t follow through with what they’re supposed to do after a violation, like getting a PBT breath test or an EtG urine test. For example, it is strongly advised that even though interlock units have a camera, if a person provides a positive breath sample, he or she should get either a timely PBT or EtG test. Yet people don’t, most often because they didn’t read the instructions, or they figured they could ignore those instructions because they tested clean a few minutes later.
Wrong.
And, as the saying goes, the beat goes on. If it’s frustrating that people don’t read and follow the instructions designed to avoid many violations in the first place, it’s undoubtedly more frustrating that people don’t do the proper follow-up, either.
For most people reading this article, it’s already too late. Still, the AHS hearing officers cannot ignore the fact that the instructions for proper ignition interlock use are very clear. If you miss a test – for whatever reason and no matter how soon you test again and are clean, or, if you fail to test clean – you need to either go directly to a police station and get a PBT test, or, within 24 hours, get an EtG urine test. This applies even if you failed a breath test, like at startup, but didn’t receive an actual violation. Any positive test for alcohol is a reason to get a follow up PBT or EtG. If you read the notice, you’ll see that it provides no exceptions to this.
To the hearing officers, the list of excuses and lack of follow-through must start to sound like a broken record, playing over and over again, on a loop. I know that even among my clients, I hear the same answers to the hearing officer’s questions:
Hearing Officer: Did you read the notice of proper ignition interlock use at the back of your order?
Client: I think I did, but obviously not good enough to remember it…
– or
Hearing Officer: Did you get a PBT or EtG test after your positive result?
Client: No….
Hearing Officer: Why not?
Client: I guess I wasn’t clear about that…
Those are honest answers, but the problem is that instructions to avoid ever having to give them in the first place are provided in every order, and are crystal clear, at that.
Thus, it becomes my job to alleviate the hearing officer’s frustrations at a hearing. I have to be creative, and believe me, it takes a certain skill to present what is essentially the same old thing in a fresh, new way all the time Fortunately, I am good at differentiating my clients from everyone else, so winning these kinds of violations isn’t a problem for me. But I am ever mindful that the endless parade of interlock violations must seem like “the same old $hit.”
There really is no great lesson or takeaway here other than what I’ve already covered. As I noted, for most people reading this, it’s too late to go and get that PBT or EtG test. If, by chance, the reader has come upon this article within a day of missing or failing a breath test on the interlock, go and get an EtG test right away. If it’s past the point of doing any good, then I’ll help you figure out a different strategy.
If you are facing an ignition interlock violation, no matter where you live in Michigan, and regardless of whether you did or did not get a PBT or EtG test, I can get you through it. If you’re looking to hire a lawyer, do your homework, read around, and then check around. All of my consultations are done over the phone, right when you call. You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 586-465-1980. We’re here to help.