Michigan Criminal Defense Lawyer Blog
A number of years ago, I wrote an article about ignition interlock violations that included the directions then provided by the Michigan Secretary of State in all orders granting a restricted license after a successful driver’s license restoration appeal. It’s time to update that, because the language of those directions has changed since then. Although this article will reprint the updated language, it’s hard to overlook the inherent irony at work here, because, by the time most people start looking for ignition interlock information, it’s because they’ve already had some kind of problem with the unit.
The instructions in each winning order lists the things that should be done if a person has a power loss (listed as “tamper/circumvent”), misses a test, or provides a positive breath sample. Even if it’s too late for those recommended PBT or EtG tests (see below), there may be enough time left to take other remedial action in order to challenge a violation. Whatever else, any problems are going to have to be satisfactorily explained to a hearing officer, whether at a violation hearing, or when a person files for full, unrestricted driving privileges. Much of this could be made better if the state fixed the language and placement of the interlock use directions.
As a result of handling so many interlock violations, one thing that’s crystal clear is that many people simply do not read, or at least thoroughly read, and then remember, the instructions for proper ignition interlock use in the order they receive informing them that they have won a license appeal. It seems painfully obvious that the Michigan Secretary of State needs to move the instructions for proper interlock use from the back of the order form that accompanies a winning license restoration appeal, where it’s put now.
However well-meaning the Secretary of State’s intentions maybe by including the directions in every order granting a restricted license, the fact is, they just get overlooked. There is little doubt that more violations could be avoided, and fewer people would lose their license again, if the instructions were put on the very front of each order, under a large heading that said something like “READ THIS FIRST, BECAUSE IF YOU DON’T, YOU MIGHT LOSE YOUR LICENSE AGAIN.”
The way it’s written a winning notice and order from the Secretary of State first summarizes the evidence, what took place at the hearing, and then explains why the hearing officer found it sufficient to grant the appeal. Thereafter, the order lists and differentiates minor violations from major violations, and only then sets forth the following, reprinted exactly:
PROPER INTERLOCK USE
YOU WILL BE RESPONSIBLE FOR ALL INTERLOCK VIOLATIONS. The statements
that follow cover some of the common violations involving the ignition interlock devices, but this list is not exhaustive. You must read this Order in its entirety and learn to use the ignition interlock device correctly. You must familiarize yourself with any and all instructions provided by your ignition interlock company.
• Never leave your vehicle running and unattended, even momentarily. If you fail to provide a timely rolling re-test for any reason, it is a major ignition interlock violation. Your original revocation/denial will be reinstated and you will lose your license.
• Never exit your vehicle without first making sure that a rolling re-test has not been requested. Arrive at your destination, physically look at the ignition interlock device, and then turn off the ignition. You should look at the device again before exiting. Do not turn your vehicle off after a rolling re-test has been requested without providing a breath sample within the allotted five (5) minute time frame. Failure to provide a rolling re-test is a major violation. Your original revocation/denial will be reinstated and you will lose your license.
• Periodically start your vehicle, even if it is not being driven every day, to ensure that the battery remains charged. If your battery dies, use a tow service or AAA to obtain a jumpstart and send the receipt and a letter of explanation to the Department immediately after doing so.
• You and/or a repair facility must contact the interlock company before making any repairs to your vehicle. Provide notice to the interlock company of the type of repairs and the dates they are scheduled to be completed.
• Obtain documentation (legible, dated, and signed receipts) for any repairs done to your vehicle. This includes tow receipts and receipts from auto parts stores. These receipts and a letter of explanation that is notarized, dated, and signed by you should be sent to the interlock company immediately after repairs are completed. Make sure it is clear on the face of the receipt if a mechanic has possession of the vehicle for longer than one (1) day.
• Receipts with an accompanying letter of explanation should be scanned, uploaded as an attachment, and emailed to MDOS-BAIIDDocumentation@michigan.gov within five (5) days of repairs being completed. Note that this email is used solely to submit documents and that the Department will not respond to emails.
• Never eat or drink anything (other than plain water) within 15 minutes of providing a breath sample. Be careful if you use mouthwashes or cold medications, such as Listerine, Scope or Nyquil. Many contain alcohol, ranging from about 20% to 30%. You should avoid using any products that contain alcohol. If alcohol is detected by the machine, you should rinse out your mouth with water and provide a second sample within five (5) minutes. Do not just walk away from the machine. It is advisable that you keep a bottle of water in your vehicle. Ask your pharmacist if you are unsure if a product contains alcohol. FOLLOW THIS INSTRUCTION CAREFULLY – YOU WILL BE HELD RESPONSIBLE FOR POSITIVE ALCOHOL INDICATIONS.
• With an alcohol reading on your interlock device or other violation such as missed rolling retest or power losses, it is also advisable that you obtain an objective test to prove you were not drinking. This might involve a preliminary breath test (PBT) from your local police station, sheriff’s department, or State Police post if within 1 hour of the violation. It could also involve other chemical tests such as an Ethyl Glucuronide (ETG) test from a toxicology lab if within 24 hours of the violation. Note that doing so will not necessarily avoid a reinstated revocation/denial if a major violation occurs, i.e., a failed rolling re-test. However, the test results may be taken into consideration in the event an administrative hearing is scheduled.
The burden is always on you to prove that you had continued to maintain abstinence and had not relapsed.
• Limit the people who have access to your vehicle. You are responsible for all violations of the interlock device. Action will be taken against you if another individual misses a re-test, provides a breath sample that includes alcohol, or otherwise violates the interlock device.
• If you change interlock companies, notify the Department within seven (7) days of the removal of your first interlock company’s interlock device and the installation of the new company’s device by mailing the new installation certificate to the Department.
To be sure, the state makes clear on the order form that it is the person’s responsibility to read and understand everything within the order, but that kind of warning largely ignores human nature. In other words, the warning may be clearly stated, but it’s not so clearly placed.
Indeed, however irresponsible it may be to not do so, the fact that people don’t read much past the part telling them they have won is proven by the sheer number of interlock violations, unremediated problems and other snafus that could be avoided or fixed if the instructions in these orders were made hard to miss, and by that, I mean more like impossible to miss by virtue of being literally pushed into a person’s face.
Moreover, the information provided in the interlock use section is somewhat, if not outright misleading:
“It is also advisable that you obtain an objective test to prove you were not drinking. This might involve a preliminary breath test (PBT) from your local police station, sheriff’s department, or State Police post if within 1 hour of the violation. It could also involve other chemical tests such as an Ethyl Glucuronide (ETG) test from a toxicology lab if within 24 hours of the violation. Note that doing so will not necessarily avoid a reinstated revocation/denial if a major violation occurs, i.e., a failed rolling re-test. However, the test results may be taken into consideration in the event an administrative hearing is scheduled.” (emphasis added).
In practice, although the Secretary of State advises getting a PBT or EtG test, it almost always EXPECTS that to be done. In the real world it would be far better if, instead of using a misleading and watered-down term like “advisable,” the order stated that a PBT or EtG test is essentially REQUIRED, and that NOT getting one after a power failure or failed or missed test causes a high likelihood that you will lose your license for good.
Why not change the language to say that getting a follow-up test is expected, and all but required? That’s certainly far more accurate than merely suggesting that getting an independent test is “advisable.” Think about it; as a driver’s license restoration lawyer, the only thing I could potentially get if it was done this way is fewer cases, but my goal is to help people and avoid violations, not sit back and ignore a potential fix that could cut down on the number of people who run into trouble.
The truth is that, in the context of an ignition interlock violation, or, when a person is appealing to have his or her restricted license upgraded to a full license, if there have been any positive alcohol readings, the hearing officer expects to see a PBT or EtG lab test result. In the absence of such a test, a person better hope that the activity logs from the interlock device also have clear pictures showing him or her promptly retesting and blowing clean soon enough.
We’ll stop here for now, and pick back up again, in part 2, by continuing to look at how the Secretary of State’s use of the term “advisable” in regards to getting a PBT or EtG test falls short of the legal expectations it has when there is a power failure (tamper/circumvent), or a failed or missed breath test.