Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began an examination of the worst kind of ignition interlock violation – a start-up failure that is NOT followed either by any further testing on the interlock unit or a timely PBT or EtG test. We examined how, when it comes to driver’s license restoration matters, the term “violation” is (imprecisely) used to mean several things: a non-compliant incident, a formal violation that causes a person’s license to be revoked again, and a hearing when someone defends against a formal violation. As we closed out the first part, we began talking about the role of PBT and EtG tests.
As far as PBT tests go, the term “PBT” means “portable breath test” (even though the police use the same device for what, in DUI parlance, is called a “preliminary breath test). In order for these tests to have any value, they need to be administered promptly, meaning something close to within the hour after a positive interlock result. Getting a PBT test 2 or 3 hours later is really of no use.
An EtG test, by contrast, can be given anytime within 12 hours and count as valid for interlock violation purposes. There is much debate about how long these tests can go back and detect alcohol, but really, there is really NO reason that a person on an ignition interlock, no matter what the circumstances surrounding a positive sample, can’t get to a facility by the end of that same day and provide a urine sample.
If a person has a startup failure and does not stay with the vehicle while rinsing and retesting (as outlined in the notice of ignition interlock use in the original order granting a restricted license) in order to get it started, and then does NOT follow up with either a PBT or EtG test, he or she is at serious risk to have his or her license revoked all over again. The takeaway here is that a person who provides a positive breath sample should move heaven and earth and make sure that, even if they don’t stay with the vehicle, they do go directly to a police station and get a PBT test.
If they don’t do that, they should be sure to get a timely EtG test, meaning no later than the end of that same day.
Let’s forget about the PBT or EtG tests for a moment, however, and consider a hypothetical:
Assume that Scrambling Sally is rushing out of the house to get to work in the morning, and just before she leaves, takes a swig of mouthwash that contains alcohol. She swishes it around as she’s leaving the house, and spits it on the grass as she makes her way into the garage. As she gets into her car, she realizes the mistake she made, but tries to start it anyway.
To her disappointment, but not surprise, it won’t start, and she gets a BAC reading of .028 on her interlock device. If Sally follows the instructions in the notice of ignition interlock use, she’ll rinse her mouth out with water, wait a few minutes (less than 5, to be sure), and try to start her vehicle again. Normally, rinsing and waiting a few minutes will be enough for her BAC to fall below .025, and for her vehicle to start.
If it doesn’t work on the first attempt, then it almost certainly will by the second.
Even if it takes Sally 3 or more times to get the car started, once it gets going, and she begins driving, Sally’s interlock unit will require that she provide rolling retests. As she tests while driving, it should become clear, by her falling BAC readings, that she did not consume any beverage alcohol, because the alcohol that was detected will continue to dissipate (meaning evaporate) much faster than if she had actually drank.
Typically, the alcohol ingested through drinking metabolizes out of the body at an average rate of .015 grams per 210 liters of breath per hour. High metabolizers can eliminate it at a rate closer to .020 mg. per hour, so many people use that higher figure in calculations to play it safe.
This means that a person with a .08 BAC will take at least 4 hours to get to 0.000. This also means that someone with a BAC of .026 will take well over an hour to get to 000. When an interlock shows a person testing out at .028, and then 20 minutes later, blowing clean, it seem rather obvious that those results were NOT from drinking.
However, when a person blows into the interlock and provides a BAC of .025 or above, causing a startup failure, but then just walks away from the vehicle without testing further, getting a PBT, or even later providing a urine sample for an EtG, it appears to all the world like they were drinking, mistimed things, and simply left the vehicle without providing any further samples because they knew that such further tests were going to be consistent with the beverage consumption of alcohol.
This is especially true when it happens in the morning, because it looks like the person drank the night before and just assumed they’d be clean by the time they were ready to go to work the next day.
Here’s the kicker: the rules governing license restorations (and violation hearings) are VERY clear that the person who is appealing has the burden of proving his or her case, by what is defined as “clear and convincing evidence.” This is why the Secretary of State strongly “suggests” that anyone who has a positive breath test result obtain a timely PBT or EtG test.
Let’s return to Scrambling Sally for a moment to help explain this: if she tries to start the car with a BAC of .028, and then, within 30 minutes, she blows a clean 0.000, it sure looks like she wasn’t drinking. However, by law, she has the burden of proving that.
If she drives to the local police station and gets a PBT before she goes to work, or, if she can’t do that, instead goes after work to a local clinic and gets an EtG test, then that essentially “ices” the notion that she wasn’t drinking. Those independent test results are given a lot of weight in a license hearing, and are the best proof a person can offer to prove that he or she had not been drinking.
It is understandable, although wrong, and contrary to the state’s written instructions, for a person to mistakenly assume that, once the vehicle starts and their BAC drops, that’s proof enough that they weren’t drinking. This make sense to a person who knows they weren’t drinking, and often causes them to assume that the errant BAC’s will be interpreted as just that: errant.
While it may indeed be true that the positive breath tests were not the result of the beverage consumption of alcohol, not following the state’s “suggestion” to get a PBT or EtG test can be costly. Remember, the person with the positive test result bears the burden of proving, and not just suggesting, that he or she didn’t drink.
It’s a WHOLE OTHER THING, however, when a person fails a startup test, and instead of following the state’s instructions to stay with the vehicle, rinse his or her mouth, and continue testing, he or she simply leaves the vehicle without testing further on the interlock device and also fails, thereafter, to get a PBT or EtG test.
Later on, it just won’t fly if he or she tries to explain why they did that by offering some excuse, like they really had to get to work. The reason, of course, is because the “I really had to get to work” explanation still doesn’t answer why they didn’t at least go for an EtG test by the end of the day.
If this isn’t clear enough, let me put it this way: the absolute WORST thing you can do on the interlock, besides getting arrested for another DUI, is to fail a startup test and then just walk away from the vehicle without testing further, and without later getting a PBT or EtG test.
Even if a person had to quickly leave the vehicle in order to hurry up and catch a ride, there is no reason (or at least none that will be believed) why he or she could not go and get an EtG urine test by the end of the day.
Let me make it clearer still: every hearing officer (and everybody involved in the license restoration business) will assume that a person had been drinking if, after failing a startup test (because it detected alcohol!), he or she does not remain with the vehicle and continue to test, or at least does not go later to get a timely PBT or EtG urine test.
The lack of follow-up breath tests on the interlock and the lack of any subsequent PBT or EtG test means the person doesn’t have any evidence to prove they weren’t drinking.
Under the law, the person filing the appeal not only carries the burden of proof, but the law itself further reads that “The hearing officer shall not order that a license be issued” unless the person proves his or her case by “clear and convincing evidence.” Thus, the hearing officer is under instructions to deny any license appeal case unless the person comes in with “clear and convincing evidence.”
To put it another way, a person walks into a situation where the answer starts out at “no,” and must hit nothing less than a home run to win.
The bottom line is that the worst thing a person can do is have a startup failure, leave the vehicle without testing further and then NOT get either a timely PBT or EtG test. The state expects that anyone who has a startup failure will follow its directions to stay with the vehicle, rinse his or her mouth, and continue to test until it starts, or at least go thereafter and get a test that confirms he or she did NOT consume beverage alcohol.
When a positive alcohol reading is caused by something like cologne, or hand sanitizer, or even “mouth alcohol” from something like mouthwash or food with certain yeasts, the source of the reading will dissipate rather quickly, and in a way very distinguishable from alcohol that was consumed by beverage.
Moreover, a timely PBT or EtG test will confirm, or reinforce, that the person had not been drinking. This is really a case where, if one follows the state’s instructions, even if things do go wrong at the outset with an errant positive interlock breath test result, they’ll be cleared up in the long run.
When the directions are not followed, however, especially in the case of a startup failure, the inevitable conclusion is that the person knew continuing to blow in the interlock and/or otherwise get a timely PBT or EtG test would only confirm that they had, in fact, been drinking.
Coming in without any proof that a person had NOT been drinking, particularly when he or she carries the burden of proving their case by “clear and convincing evidence” is often an exercise in frustration. When the hearing officer is expecting proof, and the person shows up without any, it’s not going to be a fun day…
In some cases, though, even in the absence any follow up tests, we can construct a believable story about why the person “bailed” on the car without testing further, and otherwise did not get a PBT or EtG test, but doing that well enough to succeed in an ignition interlock violation case takes work, and, more than anything else, it also needs to be true that the person was NOT drinking.
Sometimes, honest people who weren’t drinking do just “bail” without getting a PBT or EtG test. Often, though, when that happens, we can find other evidence, even if it’s just circumstantial, that can be used to save the day.
Sometimes, it comes down to the ability of a person to look the hearing officer in the eye and rely upon the strength of his or her commitment to sobriety and just be honest. That’s not proof, per se, but it’s about all a person can do without any evidence. At times, that’s all we have to work with.
That said, just don’t leave the vehicle after a startup failure without continuing to test, and don’t make the mistake of not subsequently obtaining a confirmatory PBT or EtG test thereafter.
Whatever does or does not happen, every positive test is going to have to be explained to the satisfaction of a hearing officer, as is every startup failure. It is better if that explanation takes place at a hearing for a full license, rather than for an interlock violation, but, as the old saying goes, “it is what it is.”
If you’re looking to hire a lawyer for a Michigan driver’s license restoration appeal or an interlock violation, do your homework. Read around, and see how lawyers explain what’s involved, and how they do things.
My team and I handle Michigan license appeal matters no matter where you live, so make sure to contact us as part of your search. All of our consultations are free, confidential, and done over the phone, right when you call. We are very 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. (EST), at either 248-986-9700, or 586-465-1980.