Articles Posted in Interlock Device

DUI BAC CHART MALE & FEMALE
Blood alcohol levels are related to the amount of alcohol consumed. The passage of time may mean that some of the alcohol has been eliminated from the body.  A person charged with drunk driving invariably be asked these questions which pertain to the science of alcohol absorption and elimination from the blood:

  • How many drinks were consumed (see below: 80 proof 1.5 ounce shot = 12 ounce 5% alcohol beer = 5 ounce glass of wine)?
  • What was the alcohol percentage or proof of the beverage consumed?

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What is EtG?

Ethyl Glucuronide (EtG) is a metabolite of beverage alcohol (ethanol), which means that it is used by the body to break down alcohol in the system. According to the drugtestingnetwork.com, the presence of EtG is a conclusive sign of recent alcohol consumption.

What is an EtG Test?

The EtG test, which can be implemented by a Court for a variety of reasons, is able to detect alcohol in a person’s system when a standard breathalyzer is not sufficient. Ethyl Glucuronide is detectable for up to 80 hours after an individual stops drinking, but can vary depending upon the person’s metabolism and the amount of alcohol that was consumed.

The EtG Testing Process (provided by uatests.com, a testing facility)
EtG testing is a process similar to other lab-based drugs of abuse testing. The following steps are typically followed:
Step 1: A chain of custody form is completed
Step 2: The subject voids into a standard collection cup. The temperature of the urine is checked, using a temperature strip on the collection cup, to assure it is a valid sample.
Step 3: A urine specimen syringe device is used to collect a sample of the urine.
Step 4: The syringe device, and related paperwork are sent to the lab. This is easier, cleaner and less expensive than sending a bottle of urine.
Step 5: The test samples are shipped to the lab. The most economical and effective method of getting your sample to the lab will depend on your location.
Step 6: Results are typically reported within three days of receipt at the lab.

Why is the EtG test ordered?

Individuals on probation for a criminal offense are sometimes subjected to random alcohol testing, which dictates that they blow into a portable breathalyzer. This test will only show the alcohol (ethyl alcohol) which remains in the bloodstream and is expelled as vapor from the lungs. Therefore, this test will only give information on whether or not the individual has drank alcohol within hours of taking the test.

Under certain circumstances the Court will order an EtG test for someone who is prohibited by law from consuming alcohol, based on an alcohol-related offense (usually drunk driving). The test is also used to screen for drinking problems, intervention evaluation, employment purposes and to motivate changes in drinking behavior.

Is the EtG Test reliable?

According to the Substance Abuse and Mental Health Service Administration, the EtG test is inaccurate and may actually be unreliable. The SAMHSA discusses the test’s sensitivity to even small amounts of alcohol that can be present in daily-use items. Examples include hand sanitizer, hair spray, laundry detergent, aftershave and even some cosmetic items. The information provided in the SAMHSA advisory notice led the U.S. Department of Health to deem the test “experimental”. The EtG test can produce positive results when an individual is simply exposed to any number of products which contain ethanol.

Despite EtG testing’s scientific unreliability, the test continues to be widely-used across the country. For this reason, our law firm is against the use of EtG tests.
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In Michigan, a common sanction by both the courts and the Secretary of State is the required installation of an interlock ignition device on the defendant’s (or petitioner’s) automobile. Colloquially referred to as a ‘blow and go’, these devices can be a tremendous headache for those required to install them. In our experience, there are a number of situations where these devices are compelled to be installed on our clients’ vehicles. These scenarios include;

– A ‘superdrunk’ conviction,
– Certain drunk driving convictions with aggravating circumstances,
– As a mandatory condition of a restricted license upon a successful license appeal,
– And certain crimes which may have resulted from an underlying drinking problem.

1) What is an interlock ignition device?

The cell-phone sized device is installed so it connects to an automobile’s ignition system, usually inside of the glove compartment. After installation, the driver is must blow into the device before the car will start.

2) Where can these devices be installed and how much do they cost?

Many locations in Southeast Michigan offer install services for the ignition interlock device:

American Interlock 800.580.0504 Michigan Interlock, LLC 888.786.7384 National Interlock Service 888.294.7002
New Horizon Interlock, Inc 800.597.5054 Smart Start Michigan 888.234.0198
Prices vary from company to company, but range from $50 to $200, based upon the make and model of the car. The device also holds a monthly rental fee, which can be as high as $100.00.

3) How do these devices work?

According to igntioninterlockdevice.org, the driver blows about 1.5 litres of air into the device, which is located on the car’s dashboard. Drivers can also be subjected to “rolling tests”, which require the driver to use the device once the car is moving. If the driver fails one of these “rolling tests” the device sounds a warning, which may consist of flashing lights or honking horn and will sound until the ignition is turned off (the ignition will not automatically shut off while moving). Each device contains a computer chip, which requires monthly downloads. The information is sent to the overseeing court and analyzed for blood alcohol content levels as well as attempts at tampering with the device.

4) When required by the State in a driver’s license restoration case, what will result in a violation?

The State of Michigan has divided violations into two main categories:

Minor Violations

-After the trial period, the driver fails three start-up tests (car will not start)
-If the driver fails to have the device serviced within 7 days of his/her scheduled date
Major Violations

-Failure of a “rolling test”, which is either failing to take the test when prompted or the result is greater than 0.25% and a subsequent sample is greater than 0.25%
-An arrest or conviction for drunk/drugged driving -Tampering with the Blood Alcohol Ignition Interlocking Device -Circumventing the device, by allowing a passenger to blow into the device -Three minor violations within the monitoring time (required time for device to be installed)
-Removing the device without having it re-installed within 7 days (unless Secretary of State approves)
-Operating a vehicle without a properly installed device
In the State of Michigan, a minor violation will result in a three-month extension before another driving license appeal can be requested. Major violations will cause the original driver’s license revocation to be immediately reinstated, which means the driver will no longer be able to operate any vehicle, even with an ignition interlock device installed.

5) Are these devices reliable?

Despite widespread implementation of ignition interlock devices many have doubts as to their reliability. Significant issues arise out of false positive results, which could be caused be a number of daily-use products. They include mouthwash (because of its minimal alcohol content), some medicines, and even some beverages.
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If you spend enough time in the back of a court room you will hear a few common explanations for positive drug and alcohol tests. Often when faced with a probation violation (or show cause while on bond, or if you are appealing to get your license back) defendants/petitioners will attempt to offer an innocent reason for their positive test. What defendants often do not know, that practicing attorneys do, is that Judges have heard it all. While our strategy varies from case to case – we advise that our clients NEVER* to use the following explanations when standing in judgment. Probation violation hearings are oftentimes much more serious than the underlying charge, as the Court will view the defendant as somebody who has been unable to prove themselves. Further, the sentencing Judge has the authority to sentence defendants to the maximum term of incarceration for the underlying charge. Beneath are some common excuses that come up in court. I’ve done some basic research into each of these explanations to see if they are at all supported by science, unfortunately it seems that they are not.

Excuse #1: ‘It Was Secondhand Marijuana Smoke’

When defendants test positive for THC they will sometimes tell the Judge that it was merely secondhand smoke. The Wikipedia page on drug tests (which has a wealth of other relevant information) states that “[t]his legend is technically true but highly misleading.” In order for a test to be positive from secondhand smoke one would have to be in a small unventilated space for hours with marijuana smokers. Based on this, it seems that somebody who is by marijuana smoke for a short amount of time would not have THC levels to yield a positive test. The possibility of a positive test aside, Judges hear this excuse all of the time and know it is just that. Dishonesty will always put you in a worse position than where you started.

Excuse #2: ‘The Cocaine Seeped Through My Skin’

Though a somewhat more isolated excuse, this still comes up time and time again. Karch’s Pathology of Drug Abuse indicates that a positive drug test from this type of exposure is unlikely unless dealing with a large quantity of cocaine. No surprise that Judges do not buy into this explanation. Beyond the fact that it most likely isn’t true, there isn’t a solid legal reason to be handling a large quantity of cocaine. As advised above, this is a defense that will get you nowhere and if anything will set you back should you use it before a Judge.

Excuse #3: ‘I Was Drinking Cough Syrup’

Perhaps the most common of all of the excuses, when defendants test positive for alcohol they often say that it is from drinking cough syrup. I couldn’t figure out the exact amount, but alcohol is listed as an inactive ingredient in Nyquil. Some sources stated as low as 10% and some as high as 25%. Nyquil can cause a positive alcohol test. However, it would seem that one would need to drink a large quantity to have a positive BAC or drink cough syrup immediately before blowing. MOST OF THE TIME, this excuse does not hold up. Oftentimes Judges see through this smoke screen and view the defendant as being dishonest and uncooperative. Further, a term of probation is typically no consumption of alcohol, because there is alcohol in some cough syrup this is a straightforward violation. HOWEVER, in some instances (specifically in license appeals at the DLAD) we have been successful in bringing this defense where there is corroborating evidence and/or a doctor’s note.
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bus.jpgAlmost every week a very familiar scenario plays out in our office. A client will come in, sit down for a consultation, and discuss with us the facts of his or her license revocation history. Many times it will be the instinct of one of our Firm’s attorneys that the client had a winnable case. However, the catch is that they didn’t win, and in many instances have created a mess for themselves that will take years, literally years, to unravel. Why didn’t this client win?

Oftentimes it is because they appealed their license revocation unrepresented, assuming that it was a simple and straightforward procedure. Further, it is often assumed that the hearing officers will summarily rubber stamp petitioners with a license after they wait their year. This is very much not the case. License appeals are substantively and administratively complex, and oftentimes become unmanageable for people who do not retain the assistance of an attorney. The stakes are high, losing an appeal typically results in an additional year revocation. Moreover, any inconsistencies stated in an initial hearing will come back to haunt the petitioner in future hearings. Losing a DLAD appeal means that the petitioner will have to continue asking friends and family for rides, or risk breaking the law and driving without a license. Beneath are some common mistakes that petitioners make when appealing their revocations without the assistance of counsel.

Procedural Mistakes

The DLAD has strict procedural guidelines for filing these appeals. Often unrepresented petitioners will miss deadlines, file the wrong documents, or fill out documents/background letters incorrectly. When you have a case with strong facts (IE over one year of demonstrated sobriety) it is a waste to wait an additional year because of a procedural mistake.

Substantive Mistakes

Without counsel, petitioners will often make substantive mistakes. Most commonly, petitioners who have not met the one year of mandatory sobriety will disclose that they have consumed alcohol in the last 12 months. We always counsel clients to wait that year, and will assist them in finding programs and counselors to assist them with their sobriety. Further, unrepresented petitioners tend to get nervous, and put inconsistencies on the record because they buckle under the pressure. A first hearing is intimidating, and that pressure can often cause a petitioner to lose his or her cool, become mentally unorganized, and forget vital dates – thus making a winnable case a loser.

Our Program for Getting You Back On the Road

Our law firm has a comprehensive program for getting petitioners back on the road. From our initial consultation we look at all the facts and organize them to avoid both procedural and substantive mistakes. Our firm has appeared on hundreds of license appeals and has a streamlined process for gathering and filing the documents, thus eliminating confusion on behalf of the client. Further, in our representation we include a mock hearing where you and one of the Abdo Law attorneys will go through the questions that will be asked at the hearing. The goal is to reduce anxiety and eliminate as much as possible the element of surprise in the hearing room.
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If a revoked driver (habitual violator of Michigan drunk driving laws) meets the burden of proof by clear and convincing evidence and wins at the first Driver’s License Appeal Division (DLAD) hearing, he or she will be allowed to drive a vehicle subject to restrictions and with an ignition interlock device. The driver will be able to drive on a restricted basis during certain designated hours or for a designated purpose, such as employment and/or education. In addition, the ignition interlock device must be installed for a minimum period of 1 year on the vehicle which is operated by the person. The ignition interlock is an alcohol monitoring device which requires breath samples of a person while one is operating a vehicle. The purpose of the ignition interlock device is to measure the bodily alcohol content (BAC) of an intended driver and to prevent the motor vehicle from being started if alcohol is detected.

If a revoked driver loses at the DLAD hearing, he or she will have 2 options: wait until he or she is eligible for another hearing before the DLAD (which is usually 1 year) or appeal the decision by the DLAD to the circuit court. Neither option is as satisfying as winning, yet there is hope that the person will improve his or her case for the next hearing and get back on the road.

If the party feels that the decision by the DLAD was erroneous, he or she may file an appeal in the circuit court in the county where the person resides. The circuit court judge cannot hear any new evidence and is required to limit the appeal based upon the transcript and evidence submitted at the DLAD hearing. A circuit court appeal can occur no sooner than 60 days after the DLAD hearing because a copy of the transcript must be ordered and provided to the circuit court judge. The DLAD is represented at the circuit court appeal by a representative from the Michigan Attorney General’s Office. A circuit court judge can overturn the decision by the hearing officer if it is: not supported by competent, material and substantial evidence on the whole record, and/or, arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion. In addition, a circuit court judge may deny your appeal or remand your case to the DLAD for an earlier hearing.
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The final step in the Michigan driver license restoration process is the appearance at the hearing with your lawyer. The revoked party will be required to provide sworn testimony before the hearing officer. We like to meet with our clients at least 15 minutes prior to the hearing to review pertinent questions and become comfortable with the surroundings.

The hearings are held in many locations throughout the State of Michigan. Our firm regularly appears at the DLAD hearing locations in Clinton Township, Livonia and Port Huron. The hearings held at the Livonia DLAD are “live” hearings while the hearings in Port Huron are closed circuit video conference hearings. A party can present additional documentation-evidence on the day of the hearing at the Livonia location but not at the Port Huron location. All evidence must be submitted before the hearing at a location which employs video conferencing.

A hearing will be held in a small office with your attorney and a hearing officer in attendance. The hearing officer is an attorney who works for the Michigan Secretary of State. For all purposes, the hearing officer is the judge and jury. It is our job to present all of the evidence and testimony in an organized and persuasive manner. In addition, a closing argument to sum up the evidence and testimony presented at the hearing is often made after all of the proofs are presented. The hearing officer cannot award a restricted license to someone unless the burden of proof is satisfied by clear and convincing evidence.
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I’m Matthew Abdo, and I recently started practicing at the ABDO LAW FIRM in Macomb County. I wanted to use this post as a forum to reflect on my experience with the Michigan Driver Appeal and Assessment Division (DAAD) representing persons at driver license restoration hearings. First of all, the place of your hearing will depend on where you reside. If you live in Oakland County, your hearing will be held in Livonia. If you live in Macomb County, your hearing will be in either Livonia or Port Huron.

Proceedings before the DAAD are very unique. First, most clients are surprised to hear that they are not adversarial, per se. Additionally, most are not aware that the hearing officer is going to ask probing and invasive questions about their substance abuse history. Lastly, and perhaps most importantly, many people do not realize there is a RIGHT way to approach these hearings.

Oftentimes we get clients who have already attempted a hearing without the help of counsel. Even though they have winning cases, they lose simply because they did not know how to highlight the aspects of their lives that the DAAD is focusing on. People fail to grasp that it is not so much their past that is being scrutinized, but rather their present and future behavior. The State owes a huge responsibility to the drivers of Michigan, and the burden is on the petitioner to show they are again worthy of the privilege of driving. I can say this much, the saying “it’s harder to get your license the second time than it was to get the first time” is 100% true.

1. Who is required to have an interlock device?

  • Revoked License: Your license will be revoked indefinitely if you obtain multiple drinking and driving convictions in Michigan as follows. Revocation will occur if a person obtains 2 or more drinking and driving convictions within 7 years and 3 or more convictions within 10 years. After a habitual drunk driver has served the minimum period of revocation/denial, he may be eligible for a Driver License Appeal hearing. If the hearing is held after October 1, 1999, and the person is authorized for a restricted license, the hearing officer must order the installation of an ignition interlock device in any vehicle the person intends to operate. The interlock device must be installed for the first year of license restrictions. The person cannot drive until after the interlock device has been installed on the vehicle and proof of installation has been submitted to a local branch office of the Secretary of State.
  • Super Drunks: In addition to those who are given a restricted license after a period of revocation, effective October 31, 2010, a first time offender who is convicted of having a high blood alcohol content drunk driving (.17 or greater) will be required to have the ignition interlock installed on a vehicle. If you are convicted pursuant to Michigan’s Super Drunk Law, effective October 31, 201, you will receive a hard suspension of license for first 45 days (no driving) and restricted with the requirement of ignition interlock for the remaining 320 days. Individuals who violate their restrictions will obtain another license penalty equal to the above; another 45 days hard suspension and another 320 days on ignition interlock. In addition, the new laws require vehicle impoundment when a person is caught driving without the interlock device after being placed on restrictions.

2. How does the interlock work?

An ignition interlock system, referred to as Breath Alcohol Ignition Interlock Device (BAIID) is a breath alcohol analyzer with computer logic and internal memory that interconnects with the ignition and other control systems of a motor vehicle. The purpose of the BAIID is to measure the bodily alcohol concentration, or blood alcohol content (BAC) of an intended driver and to prevent the motor vehicle from being started if the BAC exceeds the .025. The Ignition Interlock is wired into the electrical system of the vehicle. The restricted driver is given training to use the interlock. An ignition interlock tests for alcohol on a driver’s breath. The offender can only drive in a vehicle with an ignition interlock device installed. The vehicle operator is required to blow into a small handheld alcohol unit that is attached near the driver side compartment. The device will ask for random retests while driving. The car will not start if you have a startup test violation within a monitoring period, or rolling retest failure, or the device detects tampering. The State of Michigan will not be sympathetic if you used mouthwash or cold medication containing alcohol. These test violations will result in reinstatement of revocation. In addition, the police will know if you are required to have an interlock device installed on a vehicle by a simple record check.