Michigan Criminal Defense Lawyer Blog
In our work as Michigan driver’s license restoration lawyers who handle over 200 license matters per year, we deal with a LOT of ignition interlock violation issues. This article has one simple goal: to make clear that anyone who tests positive for alcohol should IMMEDIATELY go and get a PBT test, or, if more than an hour has passed, then get an EtG urine test. The inspiration for it came about as the result of a recent conversation with one of my associate lawyers about common interlock problems that we see almost daily.
This isn’t going to be a “hit piece” on the Michigan Secretary of State (SOS), but the simple fact is that the SOS fails to make crystal clear what a person is expected to after a positive test result. To be sure, some guidance is provided: Within every order granting a driver’s license restoration appeal is a section called “Proper Interlock Use,” but as we’ll see, the Secretary of State could be a lot more specific, especially in light of what the hearing officers look for when they are deciding an ignition interlock violation case, or even when reviewing a final report for someone who has filed an appeal for a full license.
This applies to anyone on an interlock who blows into his or her BAIID and gets a positive result. Instead of its supposed “guidance,” the Secretary of State should provide clear and direct instructions. In light of that omission, here is what you need to know: If you EVER provide a positive breath sample, you should immediately go to the nearest police station, sheriff’s department, or state police post and get a PBT (portable breath test). As we’ll see, there are other things you can do, but there is NOTHING that’s as good as getting a timely PBT test, and “timely,” as used here, means right away, not an hour or more later.
In the real world, people come up with all kinds of reasons why they couldn’t immediately get to a police station (or sheriff’s department or state police post). However, unless any of them was truly a matter of life or death, then a PBT should obtained straightaway following a positive interlock reading. If you can’t get that done within an hour of the positive result, then the next best thing you can do is go and get an EtG urine test, and this, too, should be done right away – not later, and certainly NOT tomorrow.
This is where the Secretary of State drops the ball. Online, it provides minimal interlock information, and the “Proper Interlock Use” instructions provided to anyone who wins a license appeal falls far short of being helpful. The instructions are rather long, so beyond the introductory language, only the sections relevant to positive breath test results will be reprinted below:
YOU WILL BE RESPONSIBLE FOR ALL INTERLOCK VIOLATIONS.
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 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.
There are 2 key, specific points that SOS makes and that you need to take from all that:
1. “ 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.”
2. “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.”
The first point is rather clear, and instructs the person to rinse his or her mouth and provide a second breath sample within 5 minutes.
What that language does not convey, however, is that, in practice, the hearing officers are inclined to believe that if someone provides a positive breath sample and then doesn’t test again, it’s because he or she knew they had been drinking, and that any subsequent tests would also be positive. Thus, rather than provide another sample that would only confirm they had been drinking, the person just decided to just “bail,” instead.
The second point, at least as written by the Secretary of State, really misses the mark. It states that, after a positive test, “it is also advisable that you obtain an objective test to prove you were not drinking.”
The fact is, the SOS hearing officers EXPECT you to get an independent test to prove you weren’t drinking. In a certain way, every positive breath test is considered a “violation” of sorts. To be sure, there are plenty of cases where we can prove that a result was errant without a PBT or EtG test, but why in the world would anyone bet the possible loss or their driver’s license on that?
Here is the bottom line to this article and to ANY interlock situation where a person produces a positive for alcohol breath test result:
Go get a PBT right away.
If you honestly do have some “life or death” situation and can’t do so immediately, then go get an EtG urine test ASAP and document why you couldn’t go right to a police station. And to be clear, by “life or death,” we’re talking a serious situation, not merely that you “had to get to work.”
An EtG urine sample should be provided within a few hours, meaning no later than by the end of that same day. Forget about the “within 24 hours” language contains within the Secretary of State’s less than reliable notice.
One of the biggest problems with all of this is that when someone knows they didn’t consume alcohol, they feel vindicated by any follow-up tests on the interlock that come back clean, and then think they’re okay. While feeling that way is understandable, the real question becomes, are you willing to bet your license that this is good enough, and that it wouldn’t be better to go and get a PBT test?
For what it’s worth, if I was on an interlock – and I know that if any of the members of our firm was on one – and any of us had a positive breath test result, we’d go straight to the nearest police station to get a PBT test.
Let’s say, though, that one of us had to be in court, and we had cut it too close, and simply could not make the detour to get the PBT first, then we’d high-tail it from court right to get an EtG test, EVEN IF the positive result was really low, and EVEN IF all follow-up tests on the BAIID were negative.
That’s us, though. To be sure, we don’t think that way because we’re smarter than anyone else; we think that way because we know, through extensive experience, how the Secretary of State does things.
Life being what it is, though, plenty of people will be reading this after the window for the PBT and even the EtG test has closed.
So what do you do if you find yourself in that situation?
Well, to be brutally honest, probably kick yourself in the a$$, first.
Following a positive alcohol test, there is nothing you can present to the Secretary of State that has the evidentiary value of a timely PBT test.
The next-best thing, although it’s definitely a second-place consolation prize of sorts, is a timely EtG test.
However, in those cases where a person simply did not get either, then we have to work with the information at hand. In other words, we have to make the best of whatever we have.
It’s here that having stayed with the vehicle and having continued to blow can be an important part of any defense.
This is because there is a clear difference between subsequent test results provided by someone who didn’t consume alcohol and someone who did.
If a person drank, then a string of tests will show how he or she metabolized the alcohol.
If a person gets an oddball, mistaken result, or, if he or she ate something that could produce a temporary, errant “blip” of alcohol, then subsequent test will show that. What will be most obvious is that the dissipation of alcohol will be very different than the decline of levels caused by the metabolization of alcohol that would follow if someone had been drinking.
Of course, we’ll also try to figure out what other kinds of corroborating evidence can be put together, and we’ll want to get any and all of it.
My team and I win plenty of cases this way, but there’s simply nothing that compares to being able to provide a timely PBT result, or at least an EtG result to counter a positive for alcohol BAIID test result.
Over the years, our firm has had a number of clients who were really “anal,” and would run out and get a PBT every single time they had any kind of interlock issue.
Even if some of those tests may have not been necessary, when a person like that appears at the Secretary of State for either an ignition interlock violation hearing, or for a hearing on a full license appeal where they must present their entire interlock report, the hearing officers take notice of the fact they were so “anal” about testing, and that always helps a case.
Consider this hypothetical:
Over the course of his restricted license, Lazy Larry has 3 startup failure, but they were far enough apart to not constitute a major violation. Each time this happened, Larry continued to blow, and each time, cleared his device, and then went on his way.
Next, assume that Diligent Diane also has the same thing – 3 startup failures over the course of her restricted license, except that in her case, each time it happened, she made a beeline right to the police station and got a PBT.
Both of them show up, on the same day, for a hearing to get their full licenses back.
Diane is first, and as the hearing officer goes over her final interlock report, her lawyer is able to provide a PBT for each positive result, and the hearing officer quickly concludes that they were errant.
Because her other evidence is good, and her case is strong, Diane wins her full license.
Next, Larry is called. As the hearing officer goes point-by-point through his interlock report, he is asked if he took a PBT or EtG test for any of the startup failure incidents.
Larry answers that he did not.
“Why,” asks the hearing officer…
Now, who would you rather be?
If you’re reading this soon enough following a positive result, and there is still time to get a PBT or EtG test, then GO!
NOW!
If not, well, then we need to make the best of what we have, and nobody can do that better than my team and I.
If you’re looking for a lawyer to help with an ignition interlock violation, an initial restoration or clearance case, or, if you’ve been on the interlock and want to get your full license back, be a wise consumer and read around. Pay attention to how different lawyers explain the license appeal process, and how they explain their various approaches to it.
When you’ve done enough of that, start checking around. You can learn a lot by speaking with a live person.
Our firm can help you, no matter where you live.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST), at 248-986-9700 or 586-465-1980.