No one is obligated to tell you whether a breath test result is legally admissible!
No one is obligated to tell you whether a breath test result is legally admissible, and very few testing results are closely examined. The Datamaster is simply a machine that can be inaccurate, even when the police properly administer the test.
Prosecutors are ethically charged with ensuring that the accused is informed of exculpatory evidence. The Michigan Rules of Professional Conduct, 3.8(d) states that the prosecutor shall:
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the degree of the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal
But prosecutors routinely avoid this rule by simply not asking the relevant questions. In fact, prosecutors will simply ignore this rule in many cases, claiming that errors are "merely technical," an exception carved out of the rules regarding breath testing that permit admissibility whenever a rule violation is actually merely technical. Every rule violation, according to most prosecutors, is merely technical. But yet, not a single prosecutor has ever taken a course that emphasized the circumstantial nature of breath testing, and the vast majority have no idea how breath testing machines work.
The Judge Will Know If the Test Is Wrong, Right?
Wrong. Judges are required to keep their distance in plea negotiations. Judges who violate this cardinal rule can actually get in trouble. If you enter a plea of guilty to a charge, the judge's job is to ensure that some factual basis for the plea. The judge does not have time to review the entire case or to explore possible defenses, even if the judge actually believes that you might be innocent. In other words, it's not the judge's job to second-guess your decision to plead guilty.
Worse still, in many cases, the trial court judge believes that everyone is guilty. This automatic knee jerk response is seen in several "bad" jurisdictions. Despite the legal proclamation that everyone is presumed to be innocent, this legal principle is frankly a myth when it comes to drunk driving cases. A breath ticket revealing an unlawful bodily alcohol content is enough for many judges to criticize defense counsel for pursing motions and/or a jury trial. "C'mon, we all know he's guilty. Why are you wasting everyone's time?" is a real quote from a sitting judge. That particular judge, as you might imagine, agrees with the prosecutor's assessment that any deviation from the breath testing rules is merely technical, every time, regardless of the rule violation. And that judge has never suppressed a chemical test despite many years on the bench.
Two Breath Test Results Must Be Offered and Closely Correlate and Exposure to Chemicals, GERD, and Diabetes Can Impact the Accuracy of the Test
Two breath test results should be recorded on the OD-80 Datamaster ticket, and the two scores must fall within certain parameters to be legally admissible. If you are exposed to certain industrial chemicals, paint thinners, suffer from gastroesophageal reflux disease (GERD, also known as acid reflux), or have diabetes, your breath test results may be artificially high. Many attorneys fail to look further than the Datamaster breath score when developing a defense or, more commonly, deciding whether to accept a plea. This is a critical error. Practical defenses can be developed very simply by reviewing the right documents and the police videos. Breath test results may be inadmissible because of deviations in the Datamaster results, problems with the testing procedure, or medical issues outside your control.
So how trustworthy are these gizmos? Former state toxicologist Felix Adatsi confided in me that he would never trust a breath test if his career was on the line. Now that he has retired and moved on to new areas of science, I feel it is appropriate to share this perspective. While Dr. Adatsi had confidence in blood (which I believed to be overrated), he would not trust a breath machine. But what about police and prosecutors? The vast majority of police officers and prosecutors who are arrested for drunk driving refuse the breath test. Statistically, news articles reveal that whenever a police officer or a prosecutor has been arrested for suspicion of DUI, a blood test was administered. But yet, they preach about how reliable these devices are in court everyday.