In my 29 years of practice, I have covered a LOT of “drunk driving” cases. This includes driving under the influence of liquor and driving under the influence of controlled substances. During the years, I have heard a lot of misinformation regarding the testing procedures in these cases and I thought I would take this opportunity to explain the different tests and how they impact the cases.
There are four main tests administered by the police in a drunk driving arrest:
- Field Sobriety Tests
- Preliminary Breath
- Implied Consent Testing (Chemical Breath Test, Blood Test or Urine Test)
- Blood Test after Implied Consent Refusal
Field Sobriety Tests
When you are first pulled over, the officer can administer different field sobriety tests if he/she suspects you are possibly driving under the influence of alcohol or drugs. Three common types of field sobriety tests are:
- Horizontal Gaze Nystagmus (HGN)
- One Leg Stand (OLS)
- Walk and Turn (WAT).
Preliminary Breath Test / PBT
If the results of the field sobriety tests support the officer’s suspicion that you might be driving under the influence, you will then be asked to take a Preliminary Breath Test, also known as the “PBT” test. It consists of blowing into a hand-held device for a certain period of time. Failure to take the PBT can result in a citation for Refusing PBT which carries a $150.00 fine plus any Court costs. However; if you are under 21 or have a CDL, the consequences will be more severe.
There are certain factors such as operator error and defective equipment that can affect the accuracy of the PBT. And PBT results are only admissible in Court under very specific and limited circumstances.
Implied Consent Testing (Chemical Breath Test aka Datamaster. Blood Test or Urine Test)
When you get your driver’s license, you make an implied agreement to take certain tests if you are under suspicion for driving under the influence of alcohol or drugs. This is called “Implied Consent” and the tests you agree to take are the Chemical Breath Test aka Datamaster, blood test or urine test.
Depending on the results of your Preliminary Breath Test, the officer may request that you take these tests. Although you have agreed to participate in this testing, there are certain steps the office must follow when making and administering the tests. If the officer fails to follow all of these steps, the admissibility of the test results can be challenged. Since BAC results are admissible in Court, I carefully analyze each case to determine if determine if all proper procedures were followed.
One of these mandatory steps is the informing you of your rights under the Implied Consent Statute explaining the penalties that you incur if you refuse to take any of the tests. If, after hearing your rights, you refuse to participate with any of the tests, three things can happen:
- The officer will report your refusal to the Secretary of State and this triggers a one-year “Implied Consent” suspension of your driving privileges. The one-year suspension is automatic unless you request a hearing with the Secretary of State to contest the suspension. A “Request for Hearing” should be attached to the Temporary Driving Permit issued by the arresting officer and you must submit the request to the Secretary of State within 14 days of your arrest. This is a specialized hearing and with limited testimony, so it is very important that you have someone familiar with the Implied Consent Statute appear with you. I will explain this process in another post.
- The officer could request a warrant for a blood draw.
- You will receive 6 points on your driving record.
If you have refused to cooperate with the Implied Consent testing, the officer can get a warrant compelling you to provide a blood sample. The blood draw can be performed in a medical facility by a licensed medical professional or at a police station/jail by law enforcement personnel who have the proper training. The blood sample is submitted to the Michigan Department of State Police Laboratory where it is analyzed for alcohol and/or controlled substances. Once the analysis is completed, a laboratory report with the test results is sent to the arresting agency. It is important to be aware that these results can take anywhere from 3 weeks to well over 9 months to be submitted to the arresting agency.
All of these tests are important factors in the prosecution of alleged driving under the influence of alcohol/drugs cases. It is very important to have an attorney who knows what these tests are, how they are supposed to be administered and what your recourse is if the procedures are not followed. After almost 30 years of practice, I know the ins and outs of all of these tests and can effectively use this knowledge to help you in your case.
Contact Attorney Michael P. Manley Board-Certified Criminal Defense Attorney today.