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Friday, February 26, 2010

In a case where the datamaster is close to the legal limit, the jury often turns its attention to the visual evidence. Recently, a datamaster produced a .06 when a citizen submitted a breath sample. This was an individual who reported drinking 2 pints of beer while bowling. She bowled a good score. She then drove her car in a blizzard to get home. However, she lost control while en route and hit a yield sign in a traffic circle.

This citizen had the right to decline to provide a second sample. Michigan law states that a person is subject to a breath test but does not have to take a confirmatory test. Law enforcement has to offer you the second test. Law enforcement also has to allow you to take an independent test of your own choosing (see MCL 257.625a). In this case, the citizen took a second test. The result was a .09. That is a problem for the datamaster. The administrative rules require that the two tests be within .01 of each other at levels of .000 to .14.

Now the burden is on the arresting officer. He was required to ask her to submit to a 3rd test. Again, she did not have to take the 3rd test, let alone the 2d. The result was a .09. The instrument did not tell the officer to seek a blood test. However, the .09 result on the 3rd test was not within .01 of the 1st test. Is that “close enough.” The way the rule is written is subject to interpretation (please see Chapter IV of the Michigan OWI Handbook from West Publishing, authored by Mike Nichols).

Even though the prosecutor initially said that he would never offer a non-dui plea bargain when the person had an accident, he had no choice. The woman lost control of her vehicle in a blizzard. She did very well on the field sobriety tests and, the chemical test was administered approximately 2 hours after the accident happened. With a lack of signs of intoxication, and the fact that she had an accident offset by the terrible driving conditions, the jury would have been left scratching its head over the discrepancy in the 3 results. Further, the jury instructions tell the jury that, they “may infer” that the test result reflected a bodily alcohol content that was identical to the person’s bodily alcohol content at the time of driving. In other words, they may but they are not required to do that. Jurors like to consider the possibility that someone’s bodily alcohol content was going up or going down and not necessarily exactly what the breath or blood test showed it was (see CJI 2d 15.5).