DISTRICT COURT UPDATE
Summons Article, June, 2007
written by
Hon. M. Randall Jurrens

District Court Update

Recent revision of the administrative rules governing alcohol breath tests prompts this month’s update.

As you know, MCL 257.625a(g) authorizes the Department of State Police to promulgate rules for the administration of chemical breath tests (both preliminary and evidential) peace officers may utilize to support drunk driving charges.

In an evolving legal environment, the Department recently revised the rules, R. 325.2651 et seq., effective February 2, 2007, which are compiled in the Michigan Administrative Code, located online through the State of Michigan’s Department of Labor and Economic Growth, State Office of Administrative Hearings and Rules: 

http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=32502651&Dpt=SP&RngHigh=

Of particular interest, R. 235.2655(e) relaxes the 15-minute observation protocol for administration of the evidential breath alcohol test (i.e. the Datamaster):  (a) the observation can be performed by more than one officer “working in concert”, (b) the officer(s) need not “stare continuously” at the subject, (c) the officer(s) can work on other tasks during the observation period provided that the subject is within their “field of vision”, and (d) observation breaks of “only a few seconds” do not invalidate the test.  These changes appear consistent with People v Wujkowski, 230 Mich App 181 (1998).

Similarly loosening previous language, R. 235.2653 now expressly allows the mandated accuracy verification of Datamaster equipment to be performed “at any time” during each calendar week (i.e. as much as 13 days apart).  This amendment appears consistent with People v Rexford, 228 Mich App 371 (1998).

A final note of interest is the permanent, “non-expiring” status now afforded certified operators under R. 325.2658.   

So, when you’re prosecuting or defending your next OWI case, be aware that while the driver may have been “tight”, the rules governing breath tests no longer are.

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