Preliminary Breath Tests (PBT)

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A preliminary breath test (PBT) is a portable, handheld device that is used a to measure a person’s blood alcohol content (BAC) by measuring the amount of alcohol you have on your breath as you exhale into the PBT. It oxidizes the alcohol in your breath as it passes over the fuel cell as it attempts to calculate the change in electrical current as it flows through the device. PBTs are normally used by police at roadside investigation where the person detained is suspected of drunk driving or DUI/OWI.
 
The device can only be used by someone trained and certified. The operator must take a training class and possess a valid Type I Operator’s certificate. The officer must also abide by the 15-minute rule which requires the officer to observe the suspect for at least 15 minutes prior to administering the PBT to make sure nothing has been placed into the mouth or that the person has not belched or regurgitated during that time period as any of those occurrences could throw the results of the machine off. The device must also be calibrated and maintenanced at least once a month.
 
The purpose of the PBT is to determine if there is probable cause to arrest the suspect. Virtually nothing good can come from submitting to the PBT as if it is .08 or above, that establishes probable cause but even if it doesn’t, the officer can still use other observations or field sobriety test results to arrest you. Refusing to take a roadside PBT is a no-point civil infraction with a fine less than $200. It is not a crime and no points will be added to your driving record. If you are under 21 and you refuse a roadside PBT, it is still a civil infraction but two points will be added to your driving record.
Do not confuse the roadside PBT with the evidential breathalyzer at the police station, known as the DataMaster. That is after you have already been placed under arrest and you will be asked to breath into the machine, usually twice. Again, the 15-minute observation period must be conducted. If you refuse to blow into the DataMaster, your license will be suspended and six points added to your driving record under the Implied Consent Law. You can contest the refusal at an Implied Consent Hearing at the Secretary of State, but those can be difficult to prevail on.
If you have been charged with OWI, consult with a Michigan OWI attorney at once.  Call Austin Legal Services, PLC at (517) 614-1983 for a free, no obligation consultation today.
Representing clients charged with OWI, DUI, and drunk driving throughout Michigan in the counties of Ingham, Eaton, Jackson, Barry, Clinton, Gratiot, Livingston, Calhoun, Kent, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, Jackson, St. Johns, Bath, Ithaca, Alma, Grand Rapids, Brighton, Howell, Kalamazoo, Battle Creek, Haslett, Okemos, Eaton Rapids.

How I Approach a Michigan DUI Case

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Lansing Michigan OWI Attorney

When a client comes into my office facing a DUI they have a myriad of concerns, especially if it is their first offense. Their fears center around if they are going to jail and are they going to lose their license. This is closely followed by concerns of losing their job, scholarship, or not getting accepted into college or graduate school. After carefully explaining the process, what they are charged with, and what penalties they are facing, I explain my approach on how I handle a DUI case.

Challenging the Stop

First and foremost, I always look at the initial stop to see if there are any arguments to be made that the stop is invalid. After all, the police just can’t pull you over for any reason. They have to have “reasonable suspicion” which is a lower standard than probable cause. Anything from speeding to infractions of the motor vehicle code will suffice. Sometimes the police initiate a stop based on an anonymous call that a possible drunk driver is on the road. These have to be very carefully scrutinized as the courts have held that the information given by the caller must be very specific and not too general. The officer’s observations and length of the observation will play a critical role in determining the validity of the stop. It is very important to obtain the police reports, cruiser cam videos, and any 911 tapes to properly evaluate the stop.

This is not only the most logical place to start, but it also often proves to be the most effective because if you can get the judge to rule that the reason for the stop was insufficient, then all the subsequent evidence following the stop and arrest is invalid as “fruit of the poisonous tree” and thus, your case will be dismissed for lack of evidence. Don’t let the police trample on the Fourth Amendment– make sure they have a legally articulate reason for pulling your car over.

DUI Investigation– Field  Sobriety Tests

The next phase is to look at what happens after stop. This involves your initial encounter with the police before beginning their drunk driving investigation. Usually it starts with the police asking you to step out of the car and perform one or several field sobriety tests, concluding with the preliminary breath test and then the arrest. This is often the bulk of my investigation as there are a lot of issues at play here. First of all, the police just can’t ask you to perform field sobriety tests just because they feel like it or it’s 2:30 on a Saturday morning (although that may very well be the real reason). The police will have to point to facts that give them suspicion that the driver is drunk or impaired by some substance. This can include a lot of factors including: a strong odor of intoxicants, bloodshot eyes, slurred speech, disorientation, nervousness or fumbling around, responding slowly to questions or requests, admitting to drinking… it’s a long list. I carefully examine the police report and the video to not only see if they match up, but if what they are claiming gives them adequate reason to begin the field sobriety tests such as the one-legged stand, walk-and-turn, and horizontal gaze nystagmus.

Once the field sobriety tests begin, I carefully review the video to see if they are done properly. If they are not administered properly by the officer, that can give good grounds to challenge the arrest if you can successfully eliminate the evidence that gave rise to the arrest. You would be surprised at how many times the tests are done wrong. Only someone who is trained in what to look for will be able to scrutinize the tests to check for any issues or deficiencies. Any inadequacy in either the stop or field sobriety testing can provide ammunition to either get the charge dismissed or to get a better plea offer than the standard.

The preliminary breath test is usually given at the roadside and is often the clincher in the officer deciding to make the arrest. This too must be carefully evaluated. Not only does the officer administering the PBT have to posses the proper training and certification, but there must be a 15-minute observation period prior to administering the test to make sure the subject has not regurgitated or placed anything in their mouth during that time period as it could effect the validity of the reading. It is also important to obtain the maintenance records and calibration logs for the PBT to make sure that it was properly calibrated and maintained. If not, that could possibly get the PBT results suppressed.

Chemical Test– Breath, Blood, or Urine

Next comes the chemical testing. Although the officer has a choice of breath, blood, or urine, they usually opt for the breath test by the DataMaster machine at the police station. Again, there must be a 15-minute observation period as well as the machine being maintained and calibrated and operated by someone trained and certified. Sometimes the officer chooses blood as the choice for the chemical test. Usually they only do that when they suspect the driver of having drugs in their system (the breath machine only measures breath alcohol) or the DataMaster is unavailable, not calibrated, or no one that is certified is available to operate it. Blood draws have their own unique criteria. Again, it is important that it must done by someone who is trained and qualified to do blood draws and that it was done in the prescribed manner.

Chemical Test Rights

It is also important to carefully check that the chemical test rights were given to the suspect before administering the chemical test. Usually there is a form that is checked off and signed that accompanies the police report. If these were not given or were inadequately given, there may be grounds to suppress the chemical test results. When that happens, the case is often dismissed or at least severely reduced. That is why it is critical to closely evaluate the entire police report and other information that goes along with it.

I always make sure to get all the material I need from the police department via a FOIA request. This is how you can tell a good, experienced DUI attorney from a lazy novice. The inexperienced DUI attorney will get the police report and maybe the cruiser cam video and that’s it. In order to properly evaluate the case much more is needed. Besides the police reports and cruiser cam videos, it’s also important to obtain the breath room video, calibration logs and maintenance records for the roadside PBT and DataMaster, certifications of the PBT and DataMaster operator, complaint reports and discipline records of the police officers involved with the arrest, as well as all the booking information including mugshot and fingerprints.

This is how a DUI attorney earns his fee and is worth every penny. If you’re shopping around and someone says they will represent you on a DUI for $500, run for the hills from that guy because he can’t possibly do an adequate job and put in all the time necessary to represent you. He will get the police report and maybe the videos and plea you out at the first court appearance. That is not the guy you want. The only thing worse than representing yourself is being represented by a bad attorney. A good DUI attorney will more than pay for himself. The stakes are too high and the procedure much too complicated to do it alone.

After I have decided on whether there are grounds to challenge the stop or suppress the evidence, or the judge has ruled against me on such matters, my focus now shifts to a different phase.

My first objective is to see if there is any way possible that the charge can be outright dismissed. That’s always my goal right out of the shoot. If that proves to not be the case, now we move on to what I call minimizing the damage. That means I try to work out the best plea possible with the prosecutor and the best sentencing outcome as well. The standard plea in most jurisdictions for a first offense Operating While Intoxicated (OWI), is Operating While Visible Impaired (OWVI) or Impaired Driving. This may not work for some people as while it has it benefits from the OWI charge (restricted as opposed to suspended license, less points on your driving record, lower fines and driver’s responsibility fees) it is still a substance-related offense which may not help some people depending on their profession or educational pursuits. If that is the case, the tactics must switch to pursuing a non alcohol-related conviction such as Reckless Driving.

On it’s face, such a plea doesn’t look like a suitable offer considering it carries the same points and driver’s responsibility fees as the OWI charge plus a hard suspension meaning no driving for 90 days. At best it seems a lateral plea but the benefit it that it doesn’t carry the stigma of a substance-related conviction like impaired driving. Also, if you unfortunately get charged with a DUI later on, you will be charged as a first and not a second offender. In the long run, this may help some clients even if the initial pain is more severe. You would think prosecutors wouldn’t be so reluctant to the plea but due to political pressure to get a “drunk driving conviction” they consider it a concession and usually will not willingly offer it unless persuaded with good reasoning by your DUI attorney. Financially the township, city, or county will come out the same, if not better, but it’s not as big of a feather to stick in their cap as an impaired or OWI conviction. Your best bet in obtaining Reckless Driving is on your first offense and the lower your blood alcohol content the better. If it’s your second offense, it’s harder to convince them to have sympathy for the detriment it’s going to have on your career. Absent some problems with their case to use as leverage, your best bet at getting a reckless plea is for your first offense.

Once a conviction or plea has been entered, the next step before the sentencing is the mandatory alcohol assessment by the probation department. A lot of people and attorneys just don’t realize how critical this is. It is vital that your client score the lowest they can on the assessment thus demonstrating that they are a low risk. The higher the score, the higher they look as a risk which means the worse the recommendations are from the probation department. Often the higher the score the more cumbersome and expensive the recommendations too. While jail is still a rarity for first time offenders, other punishment comes in the form of reporting probation with random and/or scheduled pbts, community service, alcohol educational classes, attending a MADD Victim Impact Panel; all of which cost money on top of your fines, court costs, driver’s responsibility fees, and higher insurance premiums. That’s why it is important to get the best score you can on the assessment. I often spend an hour or more preparing the client for the assessment and sometimes have them get an assessment shortly after hiring me to 1) give me an idea as to what their assessment will reveal, and 2) if it’s good use it as leverage with the prosecutor for getting a better deal. This is an important step than many attorneys overlook or downplay.

The conclusion of your DUI case is the sentencing. This takes place last after you and the judge have read the Presentence Report completed by the probation department. Many judges strictly or at least closely follow the recommendations but there are some that can be persuaded otherwise. That is where having a good, experienced attorney comes in handy. I prepare for sentencing just like I do the other phases of the case. It’s important to not only go over the Presentence Report for errors, but on how to respond or mitigate any unfavorable comments. It’s also important to present your client in the best light possible. This can include bringing documentation of any educational or professional accomplishments, volunteer work, family support, evidence of any AA attendance or alcohol classes that they have attended, letter of support or character reference. I prepare to point out as many good qualities that my client has in order to show the court not just their redeeming qualities, but to show the occasion that gave rise to their DUI was an anomaly, uncharacteristic, and not who they truly are. I then prepare the client on how to address the court if they wish to. I encourage clients to but some don’t and I respect that as not everyone is comfortable speaking infront of the judge in a crowded courtroom. It’s better to remain silent than for them to speak and make matters worse.

That is how I prepare for and approach a DUI case. Hopefully you can see the value in hiring someone experienced in this complex area of practice. It can be a lot of work, but the results can also be very rewarding and my goal is to always strive to get the best possible resolve for my client whether that is a dismissal, a good plea deal, or go to trial. Whatever the outcome, it all starts with preparation.

If you have been charged with DUI, OWI, or drunk driving, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan DUI lawyer to review your case.

Representing clients on charges of DUI and OWI throughout Michigan in the counties of Ingham, Eaton, Clinton, Barry, Gratiot, Jackson, Livingston, and Shiawassee in the cities of Lansing, East Lansing, Mason, Holt, Williamston, Okemos, Eaton Rapids, Charlotte, Hastings, Ithaca, St. Johns, Bath, Brighton, Howell, Corunna, Durand.

Field Sobriety Test: Walk and Turn

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FST– Walk and Turn (WAT)

This is the second of the three field sobriety tests that we will be discussing in detail. This one requires standardized instructions. The subject is instructed to perform nine steps touching heel-to-toe and is then told to turn around and perform the nine heel-to-toe steps again. However, a demonstration by the officer only consists of three heel-to-toe steps.

 

The officer is taught to look for eight clues which can off the score of the subject. They are:

  1. Unable to keep balance while listening to instructions
  2. Starting before the instructions are finished
  3. Stopping while walking
  4. Not touching heel-to-toe
  5. Stepping off the line
  6. Using arms to balance
  7. Making an improper turn
  8. Performing an incorrect number of steps

If the driver exhibits two or more clues, they fail, thus indicating intoxication.

This test requires a straight line and a reasonably dry, hard level and non-slippery surface and enough room to turn. Often a burm line or parking space line will be used if available. If the driver is wearing two-inch heels, they should be given a chance to take them off. Take as many mental notes as possible to relate to your DUI lawyer about the surrounding area. It is also best to view the place in the daytime for a more accurate observation. Again, the police report and cruiser cam videos should be carefully scrutinized to make sure the instructions were given properly and the test was administered correctly.

 

If you are facing an OWI, contact our Michigan OWI lawyer today at Austin Legal Services, PLC at (517) 614-1983.

 

Defending OWI charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Shiawassee, Lenawee, Jackson, Barry, Livingston, Kent, Washtenaw in the cities of Lansing, East Lansing, Mason, Holt, Okemos, Delta Township, Lansing Township, Jackson, Bath, St. Johns, Jackson, Hastings, Howell, Brighton, Grand Rapids, Ann Arbor, Corunna.

Field Sobriety Test: Horizontal Gaze Nystagmus (HGN)

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Lansing Michigan OWI Attorney

FST– Horizontal Gaze Nystagmus (HGN)

The HGN supposedly detects an involuntary jerking of the eye (nystagmus) while the eyes attempt to follow a stimulus. In other words, it involves the eye following an object to determine characteristic eye movement. Police officers across the county have been trained to use this as a means of determining if a driver is inebriated even though there are more than three dozen potential causes of nystagmus other than intoxication. This is among the longest and most complex FST. Here’s how it goes.

First, the officer must check the eyes by holding a stimulus (usually a pen) 12 to 15 inches from the nose slightly above eye level and then move it smoothly across the field of vision checking for resting nystagmus, equal pupil size, and equal tracking. The test must begin with the left eye and then right at a rate of two seconds per each eye per pass. Then, the officer must check for distinct and sustained nystagmus at maximum deviation, tracking each eye separately starting with the left eye. He must hold the stimulus at least four seconds once the stimulus is at the farthest point and the eye is at maximum deviation. This is repeated to check for heavy or distinct, sustained nystagmus.

The next step is to check for an onset of nystagmus prior to 45 degrees for the stimulus to reach the edge of the driver’s shoulder. The officer must stop if he sees any signs of jerking to see if it continues. This is repeated so that each eye is checked twice. The full four seconds must be used because if the stimulus moves too fast, the officer may go past the point of onset or miss it altogether.

Officers are trained to look for three clues when evaluating the nystagmus in each eye:

  1. An inability to follow a moving object smoothly
  2. A distinct and sustained nystagmus at maximum deviation
  3. An onset of nystagmus at prior to 45 degrees

There must be a total of 14 passes for approximately 84 seconds. If the officer does a different number of passes than this or the time if significantly above or below 84 seconds, you know they’ve done it wrong. It is very important that the police report and cruiser cam videos be carefully examined to scrutinize the administration of this test.

 

If you have been charged with an DUI, call Austin Legal Services, PLC at (517) 614-1983 to speak to our Michigan OWI Attorney about your case.

 

Representing OWI Clients throughout Michigan in the counties of: Ingham, Eaton, Jackson, Livingston, Shiawassee, Kent, Clinton, Barry, and Gratiot and in the cities of: Lansing, East Lansing, Mason, St. Johns, Bath, Ithaca, Charlotte, Jackson, Brighton, Howell, Corunna, Grand Rapids. 

Field Sobriety Tests

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Lansing Michigan DUI Lawyer

Field Sobriety Tests (FST)

Field Sobriety Tests (FST) are a series of test established by the National Highway Traffic Safety Administration (NHTSA) to help police officers determine when a driver is at or above the legal limit of .08 blood alcohol content. They are not designed to determine impairment of the driver. Police officers nationwide administer these tests at the roadside, usually around 2:30 a.m. to motorists suspected of drunk driving. They are not without controversy however as many believe them to be unreliable and unscientific. The three standardized FST they are often administered are the Horizontal Gaze Nystagmus, Walk-and-Turn, and the One-legged Stand. There is also a portable device called a Preliminary Breath Test which gives a precursory reading of your blood alcohol content. I will discuss each of these in more detail.

In 1991 Dr. Spurgeon Cole from Clemson University conducted a study on the accuracy of field sobriety tests. His staff videotaped 21 people performing FST and then showed the videos to 14 police officers and asked them which ones “had too much to drink and drive.” The police officers concluded that 46% of the subjects were too drunk to drive. Unknown to the officers, all of 21 subjects in the video had a BAC of .00. According to studies conducted by the NHTSA, the Walk-and-turn only has an accuracy rate of 68% while the One-legged stand is only 65% accurate. Keep in mind that these statistics reflect when the tests are supposedly performed correctly. The accuracy rates will be much lower when not administered correctly.

It is easy to see why you should never attempt any FST. They are often not administered properly and even when they are, you will almost assuredly fail at least one of them which is enough to land you in handcuffs and an escort to the police station. They are designed for failure so do not attempt them. Ever.

 

Non-Standardized Field Sobriety Tests

Watch out for when the police try to have you perform FST that are not standardized, or scientifically validated, by the NHTSA. These can include having you recite the alphabet, sometime backwards (yes, they actually do that), or reciting the days of the weeks or months of the year in some mixed up order, touching your nose with your finger. These tests are not standardized nor are the officers trained to administer them, so under no circumstances should you ever attempt any of these tests. For that matter the police shouldn’t even be asking people to do them, but they do.

 

FAQs About Field Sobriety Tests (FST)

Can I Refuse to Take a Field Sobriety Test?

Yes and you should. This refusal has no penalty and cannot be used against you. Virtually no good can come from taking the FST as undoubtedly you will fail one or all of them. By taking them you are only arming the government with more evidence against you so you should always politely decline. Refusing the roadside Preliminary Breath Test (PBT) is a no-point civil infraction with a fine running between $100-200. Do not confuse this with the DataMaster breathalyzer at the police station. Refusing any chemical tests at the police station has serious penalties and consequences.

 

If I Pass All the FST, Can They Still Arrest Me?

Yes, if the are other factors that the officer can articulate that suggest intoxication. These can include: a strong odor of intoxicants, bloodshot eyes, slurred speech, disoriented as to time and place, lack of coordination, weaving while driving, being slow to respond to questions or requests, fumbling for your driver’s license or registration, admitting to drinking alcohol. This is another good reason why to refuse to take the FST because even if you pass (which is rare) it still doesn’t mean you’re home free. Keep in mind that you only have to fail one FST to establish probable cause for the police to arrest you.

 

Can Refusing a FST or a PBT be Used Against Me in Court?

No. At least, not usually. Refusing to perform a FST will almost never be used at trial, especially as evidence of your guilt. The PBT refusal is usually not allowed to be brought into evidence at trial, but it can if the defense raises the defense of a rising blood alcohol content (the BAC was higher at the police station than the roadside, thus meaning that maybe your BAC was below the legal limit at the time of driving) or if the defense contends they were never offered a PBT. Other than that, your refusal has no penalties and cannot be used against you.

 

If you have been charged with OWI you need an experienced attorney representing you. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan OWI Lawyer about your case.

Representing OWI Clients throughout Michigan in the counties of: Ingham, Eaton, Jackson, Livingston, Shiawassee, Kent, Clinton, Barry, and Gratiot and in the cities of: Lansing, East Lansing, Mason, St. Johns, Bath, Ithaca, Charlotte, Jackson, Brighton, Howell, Corunna, Grand Rapids.