Getting Judges to Challenge Michigan Breath & Blood Tests in OWI’s

What do you find most difficult about practicing in this area of the law?

The most difficult thing is that the law has become increasingly more and more difficult for us to persuade the judge, in particular, to act as a gate keeper of unreliable evidence.  I’m referring primarily to breath and blood testing.  There are rules in the state of Michigan that were recently changed and we won’t have time to talk about that, but there are rules in the state of Michigan that dictate how the machines that are used need to be maintained. 

The procedures that the police need to follow in administering the test.  They are designed to make sure that the test result is reliable.  The Judge is supposed to review what happened in your case as the accused and make sure that the police followed the rules and to not let that evidence in for the juries’ consideration.  Those rules have been relaxed so much that now virtually every breath or blood test is going to be presented to a jury, regardless of whether or not the rules were followed, or if the prosecutor can make out a basic case for the reliability of that evidence.

The question would be, if the laws were relaxed so much, doesn’t that mean that the prosecutor or the police are going to much less diligent about making sure that high standards are kept with regards to these tests?

Absolutely.  You have really hit the nail on the head as far as the biggest problem that we have.  That is, if there is nobody overseeing what the police do, then the police really can effectively do whatever they want or not do whatever their supposed to do.  If you are facing this type of charge, certainly you want to make sure that the test result is reliable before you plead guilty.  If the court is not making sure that the police do that, all we are left with is the jury.  That is why we have to put our faith in the jury and make sure the jury will do the right thing.

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