After an arrest for an OWI related offense, the arresting officer might ask the driver to submit to one of three chemical tests that may be given under Michigan’s Implied Consent Law (MCL 257.625c). Those three types of chemical tests include:
- A breathalyzer test
- A blood test; and
- A urine test.
These tests are all designed to measure a person’s blood alcohol concentration (BAC). If the person has a BAC reading of .08 or above, then the officer can lawfully arrest them for driving while under the influence of alcohol or drugs. Although these tests are science-based, there have been reports of numerous problems with scientific OWI testing. Certain factors could influence the test and skew the results, so a perfectly innocent person ends up charged with OWI.
These factors could be internal such as forgetting to calibrate a breathalyzer or external such as taking cough syrup before you drive. Plus, when you comply with OWI testing you’re giving the prosecution concrete scientific evidence of your intoxication if your BAC is above .08. Despite implied consent laws, you still have the right to refuse OWI testing at any time. Although you may face administrative consequences, it may be the best option in the end.
If you or someone you know has been charged with OWI or recently refused OWI testing, then we highly encourage you to contact experienced legal representation immediately.
OWI Attorney for Breathalyzer Tests in Oakland County, MI
Have you been accused of OWI or refused a breathalyzer test recently? Then get in contact with Dallo Law, P.C.. J. Dallo of Dallo Law, P.C. has been practicing criminal defense for years and has a very specialized focus in OWI, OWVI, OWPD, or OWHBAC. His knowledge and extensive resources give him the advantage when crafting a defense. Learn more about your legal options by contacting the legal team at Dallo Law, P.C..
Schedule your first consultation free with Dallo Law, P.C. by calling (248) 283-7000. Dallo Law, P.C. has offices based in Bloomfield Hills but accepts clients throughout the greater Oakland County and Macomb County area including Eastpointe, West Bloomfield Township, Clinton Township, Warren, Sterling Heights, Utica, Waterford Township, Pontiac, Royal Oak, Roseville, and Clarkston.
- Can the Police Make You Take a Breathalyzer?
- Types of OWI Testing
- Additional Resources
Can the Police Make You Take a Breathalyzer?
The state of Michigan abides by implied consent laws, which state law enforcement reserve the right to have you undergo OWI testing if they believe you’re under the influence of alcoholic beverages or drugs. However, you can refuse a breathalyzer or other OWI test. You can choose to refuse OWI testing and instead receive an administrative penalty. This differs from a criminal penalty as you won’t be detained or sentenced to jail unless the officer takes your refusal as enough probable cause to make an arrest.
If you refuse to take a breathalyzer, your license will automatically be suspended for violating implied consent laws. A first-time refusal will result in a driver’s license suspension for up to one year. If you had a previous refusal within the last 7 years, then the license suspension will be enhanced to two years. No matter how many refusals you have in each instance the state will add six points to your license as a result.
Although a license suspension is a hassle, it’s much easier to clear up than OWI charges. Refusing to comply with OWI testing will limit the prosecution as they won’t have any concrete evidence of your intoxication other than subjective testimony from the officer or dash/body cam footage. Plus, you have an option to clear up your license suspension. You can file a request for an administrative hearing to address the alleged refusal. You can then bring your legal counsel with you to represent you on your behalf and either have the suspension lifted or receive a restricted license.
Types of OWI Testing
The officer will typically ask for a breath test unless:
- The officer suspects that a controlled substance may be involved; or
- The person has an injury to the mouth.
During the 20-minute period before the breath test, the officer should prevent the subject from ingesting food, drink, or any other items that could contaminate the chemical testing.
If the law enforcement officer makes a request for a chemical test, the officer can choose the type of test. But if the suspect submits to that test, then the suspect is then allowed to request an independent test. In other words, if after an arrest, the person submits to the offered test, that person is then afforded a reasonable opportunity to obtain a test of his or her own choosing at his or her own expense.
When administering a breath test, the breath test operator must follow the procedures outlined in the latest edition of the Michigan Breath Test Operator Training Manual. The breath test is the most commonly used test for OWI by law enforcement. These tests work by using a chemical reaction mixture to detect if any vaporized ethanol is in the person’s system. It then provides a BAC reading based off that information.
Breathalyzers are scientific devices, but they aren’t without fault. They must be regularly maintained, or they could produce skewed BAC readings. If lab technicians or police aren’t careful when gathering a breath sample, they themselves could contaminate the test. Other outside factors could affect testing to such as being on a diet or having a slow metabolism. Listed below are some factors that could significantly impact breathalyzer BAC results.
- Failure to calibrate the device;
- Being on a diet;
- Having a slow metabolism;
- Having acid reflux;
- The officer read the results wrong;
- Electromagnetic interference from other devices;
- Officer failed to follow procedures;
- Hiccupped, belched, or vomited before the test; or
- The temperature of the person’s breath
While an arrested subject does not have the right to have an attorney or other person present during a breath test, subjects who request to contact an attorney prior to submitting to the offered test shall be given a reasonable opportunity to do so.
An arresting officer will request a blood sample if:
- A breath sample cannot be obtained because of the arrested subject’s physical condition (e.g., a mouth injury or blood in the mouth).
- The portable breathalyzer (PBT) or breath test results (e.g., a result of 0.00) are inconsistent with the arrested subject’s behavior, indicating that drugs may be involved.
- The arrested person appears to be intoxicated but the investigation indicates that the subject’s actions are caused using controlled substances, or other intoxicating substance, or a combination of them, and not the result of illness or injury.
- The officer suspects the person of being under the influence of a controlled substance or other intoxicating substance or a combination of them.
Michigan law requires that only a licensed physician, or a licensed nurse or medical technician acting under the direction of a licensed physician, in a medical environment, may withdraw blood for the purpose of determining the amount of alcohol or presence of a controlled substance or both in the person’s blood. To collect the blood sample, the Alcohol and Drug Determination Kit furnished by the Forensic Science Division through the Distribution Center must be used. The blood sample is then sent for analysis to the appropriate laboratory.
The criminal defense attorney can move the court to suppress or exclude the blood test evidence based on any of the following reasons:
- When the blood sample was submitted to the laboratory for testing, it was not sealed.
- The identification labels provided in the kit were not used to seal the test tubes or the specimen bottles.
- The labels were not placed on the test tube or bottle, clear of the end of the cap.
- The peace officer did not request the blood samples withdrawn or collected.
- When the blood sample was collected, the guidelines for sample collection found on the Alcohol or Drug Determination form, FSD-093, were not followed.
When the arresting officer suspects that drugs caused the impairment, the officer will attempt to identify what drugs the subject may have ingested using any of the following methods:
- Interview the suspect following the advising of Miranda Rights to ask what illegal drugs were taken and in what quantity, and what prescription drugs were taken and in what quantity.
- If the subject admits to illicit drug use, the enforcement member should document the admission and the types of drugs used.
- Any drug paraphernalia or other signs of drug use present.
- Prescriptions, bottles, pills, and the results of any searches at the scene of the incident shall be documented.
- Unusual behavior.
- Enforcement members shall list on the FSD-093 what drugs the lab should test for. If the type of drug is unknown or there are multiple drugs suspected then enforcement members shall ask for a “complete drug screen.”
Under MCL 257.625c(2), Michigan law requires that a person afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant shall not be considered to have given consent to the withdrawal of blood. If the officer learns that the suffers from one of these conditions, the officer must offer a breath test. If a blood draw is required, the officer must first seek a court order or search warrant authorizing the blood draw.
The urine sample is not as valuable to the prosecution because it can only be used to show that the subject had past exposure to drugs but not when that exposure occurred. That is because the metabolites from drugs can stay within a person’s system for days, weeks, and sometimes months. In other words, the results of the urine test do not show when the drugs were taken, or the quantity of drugs consumed.
For this reason, the officer might request a urine sample when there is not a medically feasible or safe method of obtaining a blood sample. When collecting a urine sample, the officer must follow the guidelines for sample collection found on the Alcohol or Drug Determination form, FSD-093.
These Machines Can Put You in Jail | Just Don’t Trust Them – Visit the official website for the New York Times to read a story surrounding breath analysis, breathalyzers, PBTs and their issues by writers Stacy Crowley and Jessica Silver-Greenburg. Access the document to learn why law enforcement rely on breathalyzers, ways a breathalyzer can produce false or skewed results, and the history of the breathalyzer.
Michigan Implied Consent Laws – Visit the official website for the Michigan Vehicle Code to learn more about their implied consent laws for OWI. Access the site to learn the suspension periods for violating implied consent laws, what happens if you repeatedly refuse OWI testing in a 7-year period, and other relevant information.
Breathalyzer Refusal Attorney in Oakland County, Michigan
If you or someone you know has been charged with refusing OWI testing or OWI, it’s important you seek an experienced criminal defense attorney such as J. Dallo of Dallo Law, P.C.. Attorney Dallo has an in-depth understanding of both OWI laws and the science behind OWI testing. His background and dedication to his clients can work to your benefit if you hire him for your case.
Call Dallo Law, P.C. today at (248) 283-7000 to set up your first consultation free. Dallo Law, P.C. firm] is located in Bloomfield Hills, but we practice throughout the greater Oakland County and Macomb County area. Some cities we frequently reprsent clients from include West Bloomfield Township, Eastpointe, Birmingham, Madison Heights, Pontiac, Troy, Clarkston, New Haven, Fraser, Sterling Heights, Romeo, and Armada.