Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began our examination of the ignition interlock in the context of Michigan driver’s license restoration and DUI cases. An ignition interlock unit is required if you win a Michigan driver’s license restoration case, get a restricted license through a sobriety court, or are convicted of OWI with a BAC of .17 or greater (High BAC). In addition, some Judges order an interlock as part of their sentence for a DUI (other than a High BAC). However it happens, if you have to use an interlock, there are certain things you must do, others you cannot do, and, often enough, problems to deal with as part of all that. Here, in part 2, we’ll continue with our overview.
The main thing about interlock units is understanding how not to screw up, and, almost as important, what to do if things go wrong. When you’re a passenger on an airplane, you don’t really have to worry about the flying part of things, because the pilot takes care of that. You just need to know what to do if the oxygen masks drop, or if there is an emergency. With the interlock, learning how to use it takes mere minutes, and it becomes second nature almost instantly. I can’t stress enough that for as complicated as this may sound at first, getting and then learning how to use an interlock is really simple. It’s when something goes amiss that you need to be prepared, and we’ll get to that.
Once it’s installed, you have to blow into the interlock unit in order to start your vehicle, and, while driving it, will have to blow into the machine and provide breath samples when prompted. This is all done through a handset attached to a cord. When the unit is installed, you will be shown how to use it. There are things you must be taught, like blowing hard and long enough to provide a proper sample. Again, while it’s hard to explain all this here, there is zero chance you’ll leave the facility not knowing how to use this thing.
An interlock unit is designed to prevent a vehicle from starting if a person provides a breath sample above .025. That means if you blow and the machine reads .025, the vehicle will start (although you will, at some point, have to answer why you had any alcohol on your breath). If, however, your breath sample is .026 (or above), then the vehicle will not start. This is called a startup failure. If 3 of them occur in any monitoring period (by law, a you are required to have the interlock serviced every 60 days, and that includes downloading the activity logs for the machine), then you will be violated by the Michigan Secretary of State. This applies whether you’re on an interlock for a High BAC offense, have a license through Sobriety Court, or have won a driver’s license restoration appeal.
If that happens and you’re violated, your license will be re-revoked automatically (this is technically called a “reinstatement of original action”, the original action being the revocation of your license). After receiving notice of an interlock violation, you have 14 days to request a hearing to contest it, otherwise your license will stay revoked. This means that if you decide later to do another license appeal, you have to start from scratch AND satisfactorily explain away the violation that caused it to be revoked all over again.
Here, we encounter a fairly common problem; just because a person’s breath contains alcohol does not mean he or she was drinking. Often, a positive breath sample is a result of something a person recently ate, or, can occur if someone used mouthwash with alcohol (although people with interlocks are advised to not do so) very recently. The catch is, in these situations, these “errant” alcohol readings go down VERY quickly – much quicker than if a person had actually been drinking.
Beyond having to blow in the machine to start your vehicle, you will be asked at random time intervals to provide a breath sample while driving. These are called “rolling retests.” You must provide a breath sample within 5 minutes of being prompted to do so, or you will be violated for what is termed a “skipped rolling retest.” Again, this kind of violation starts with a notice that your license has been revoked again.
Also, if you blow over the preset limit (.025 in Michigan) while driving, and don’t “clear” the device (meaning provide a breath sample of .025 or lower) within those 5 minutes, your horn will start honking and your lights flashing. In other words, your car won’t stall out in traffic, but the whole world will hear and see you coming. If this happens, you will be violated, the revocation of your license reinstated, and you’ll have to appeal to get your license back (again).
In addition to these things, you must have a good, working battery in your vehicle, because if the unit is ever disconnected – even for a single second – or it loses power, you’ll be violated. A violation of this kind is called a “tamper/circumvent,” and, just like with 3 startup failures in a monitoring period or a failed or skipped rolling retest, it begins with your license being yanked.
HOWEVER – and this is REALLY important – sometime, a person can “head off” a tamper/circumvent violation if something happens like his or her battery dies by sending proof to to the Secretary of State in Lansing that it was promptly replaced.
Unfortunately, being able to head off a potential violation is kind of hit-or-miss, but sometimes, when the system works, someone from the SOS can see, based on provided repair invoices or receipts, that a person had a battery fail, quickly got a new one, and then will stop a formal violation from going forward. Key in everything I just went over, though, is the word “sometimes.”
I’ll repeat myself once more: this all sounds a lot harder than it actually is. The learning curve here is a fraction of what it was when we transitioned from flip phones to smart phones. Not only will your interlock provider teach you (and, if I’m your lawyer, we have all of our clients call the office once they get their winning decision so we can go over how to prevent a violation and what to do if things go wrong), but the state provides it’s own instructions, as well.
When someone wins a license back from the Secretary of State, there is specific part of the order granting the license appeal that contains instructions for using the interlock, and it makes very clear that each driver is responsible for complying with what’s covered. Here it is, verbatim:
NOTICE OF PROPER INTERLOCK USE
The statements that follow are not boilerplate. Common violations of the interlock device are listed, but this page is not exhaustive. You must read this Order in its entirety and learn to use the interlock device correctly. You are responsible for all interlock violations.
• Never leave your vehicle running and unattended, even momentarily. If you fail to provide a rolling re-test for any reason, it is a major violation of the interlock device. Your 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 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. Doing so is a major violation. Your revocation/denial will be reinstated and you will lose your license
• Regularly start your vehicle even if it is not being driven to ensure that the battery remains charged.
• 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.
• Never eat or drink anything within 15 minutes of providing a breath sample. If alcohol is detected by the machine, you must 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 advised that you keep a bottle of water in your vehicle. It is also advised that you obtain a preliminary breath test (PBT) from your local jail or sheriff’s department, or an Ethyl Glucuronide (ETG) test from a toxicology lab to prove that you were not drinking. 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 continue to maintain abstinence.
• 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 with a BAC, or otherwise violates the interlock device.
Notify the Department within seven (7) days of changing interlock companies by mailing the new installation certificate.
These instructions make clear that if a person provides a positive breath sample, he or she should stay with the vehicle, rinse his or her mouth out with water, and keep blowing until they get clean breath test. This is important, because when a person has been drinking, the alcohol reading goes down slowly, as the alcohol metabolizes in his or her body, whereas if the alcohol shows up due to environmental or other reasons (like eating something) is clears out very quickly.
When you know what to look for as you read an interlock activity report, this appears very different than how alcohol dissipates after a person gargles, or eats a food containing something like yeast, where a positive reading goes down to zero in a matter of mere minutes. The term “mouth alcohol” is sometimes used when discussing these kinds of results, although that doesn’t really apply to alcohol that is the by-product of consumed foods or just in the air (environmental). Whatever else, when a person stays with the device and provides multiple breath samples, these readings are easily distinguishable from those caused by actually drinking.
This brings us to another real-world problem. Sometimes, people DO NOT stay with the vehicle and continue to blow, so there is no record of the alcohol in their breath going down. This is almost expected when someone wakes up in the morning, having been drinking the night before, and figures that they’ll be “fine.” When they blow into the device, however, and it detects alcohol, they KNOW there is no way that the level will go down quickly, so instead of continuing to provide samples that confirm they consumed alcoholic beverages, they bail out and don’t test anymore.
If someone who really was not drinking bails out after providing an initial, positive sample, it creates the appearance that they were drinking. Thus, the worst thing you can do after a startup failure is NOT stay with the vehicle and continue to test.
While there are all kinds of things that can go wrong, the most common situations, by far, occur when a person blows “positive,” fails a startup test (as we’ve been discussing), skips a rolling retest, or has a “tamper/circumvent” violation (usually because of a dead batter or work being done on the car).
In the real world, the biggest regret I see that is that, after a positive-for-alcohol test, many people do not, as the notice suggests, promptly go to a police station and get a PBT test, or at least get an EtG urine test by the end of the day where there was a positive reading.
If the reader takes just one thing from this article, it’s to do either of those things anytime there is a positive test result, no matter what the reason for it was, or was not. In other words, it’s not good enough if YOU know you weren’t drinking. Get a PBT or EtG test. On a scale of 1 to 10, I’d rate the importance of doing this as a solid 17!
Obviously, this is just a summary overview of the much deeper subject of ingestion interlocks. To briefly summarize what we’re covered in this article, if you have to get an interlock, you get one; that’s not hard. You use it; that may sound hard, but it’s not. You don’t drink; even so, sometimes there are issue. If you have an issue, you follow through with the instructions provided by the Secretary of State (or, if you get your interlock through a court, then you print them from this article and use them).
If you’re facing a DUI, an ignition interlock violation, or need to win back your Michigan driver’s license, do your homework as you look for a lawyer. Look for real information. Read around, and then check around. All of my consultations are confidential and done right over the phone, when you call in. We’re really friendly people who will be glad to answer you questions and explain things. You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 248-986-9700 or 586-465-1980. We’re here to help.