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Transcript

The Michigan Breath Alcohol Testing Scandal: What Really Happened?

Michigan defense attorney William Maze joins me to talk about the dark side of Michigan's breath testing program, and the unscientific closed-door policies of breath test manufacturers.

Scientists hiding results in lab

I spoke with Michigan defense attorney William Maze about the breath alcohol scandal that took place with Michigan’s breath alcohol program.

The scandal involved fraudulent calibration and maintenance of the DataMaster DMT by Intoximeters, Inc. and the Michigan state police.

Our conversation highlights the need for openness and transparency in breath alcohol testing. Current manufacturers of breath alcohol analyzers have a closed-door policy—they won’t let independent scientists review their devices. But science requires openness and free inquiry.

William also shares how the state of Michigan hid electronic evidence about breath tests for over 18 years. The state claimed that their DataMaster didn’t have any electronic records, but in fact, it did.

William provides insights into building a strong defense for DWI cases, emphasizing the significance of analyzing the stop, personal contact phase, field sobriety tests, and forensic tests.

About William Maze:

William Maze is a leading DUI defense attorney in Michigan. With over 27 years of experience, he specializes in DUI defense and has advanced training in the DataMaster breath alcohol analyzer. William is also an adjunct professor at Madonna University, teaching forensic science and expert testimony.

Clips:

The Michigan State Police withheld data about the DataMaster DMT:

The breath alcohol instrument manufacturer’s closed-door policies are terrible:

The adversarial relationship with breath alcohol instrument manufacturers:

Key Takeaways:

  1. Michigan had a problem with field sobriety tests, but through collaborative efforts, they passed statutes requiring substantial compliance with standardized tests.

  2. Breath test manufacturers like Intoximeters and CMI have a closed-door policy with the defense community, hindering transparency and scrutiny.

  3. Michigan experienced a fraudulent calibration and maintenance scandal involving Intoximeters, compromising the accuracy and reliability of breath test results.

  4. Accessing electronic data in breath testing cases is crucial to determine the validity of the tests and potential tampering.

  5. When building a defense for DWI cases, it is essential to consider the legality of the stop, signs of consumption, field sobriety tests, and the validity of forensic tests.

Quotes:

  • "These closed-door policies are absolutely terrible. John [Fusco] never had a problem with any of us in the defense realm." - William Maze

  • "The electronic data does exist. So for about the first 18 or 19 years of practicing DUI defense, I was repeatedly misled by the Michigan State Police." - William Maze

Chapters:

00:00:00 Introduction and Guest Background

00:01:57 Challenges in Field Sobriety Tests

00:03:16 Experience with DataMaster Breath Alcohol Analyzer

00:04:32 Issues with Breath Test Manufacturers

00:07:52 Michigan's Fraudulent Calibration and Maintenance Scandal

00:11:01 Introduction to the data master DMT in Michigan

00:13:49 Issues with the weekly and 120-day simulators

00:18:23 Discovery of fabricated logs and compromised passwords

00:23:54 Existence of electronic data and its use in convictions

00:24:37 Data Master DMT printing breath flow and alcohol data.

00:26:53 Importance of fighting a DWI charge based on occupation.

00:27:04 Analyzing the science and evidence in a DWI case.

00:29:48 Challenging the legality of a traffic stop.

00:32:31 Evaluating signs of alcohol consumption and field sobriety tests.

00:35:42 Discussing breath, blood, and urine testing methods.

00:36:00 Final thoughts and potential future discussions on war stories.

Automated Transcript (not checked for errors)

Introduction and Guest Background

Aaron Olson: Welcome to the Science of Alcohol Testing. Today I've got guest William Mays. William is one of Michigan's leading drunk driving defense attorneys. He has advanced training in the data master breath alcohol analyzer from the manufacturer. William, thanks so much for coming on the show.

William Maze: Hey, thanks for having me.

Aaron Olson: So before we get started, tell the guests a little bit about yourself. What's your background?

William Maze: Oh, I mean, I've been. Practicing DUI defense now for, well, I've been an attorney for about 27 years and in 2004 or 2005 I joined the national college for DUI defense, and I've been a member ever since, uh, got really involved in the science and I. Yeah, underlying DWI defense, so for breath, blood, urine testing, field sobriety tests, that sort of thing.

So I've been doing that almost exclusively now since 2005. So over, well, a couple of decades now, I guess.

Aaron Olson: And I should also mention to listeners that you've got a great TikTok channel that I follow. It's if you haven't, if, if you haven't followed them there, go go there. You put out some great videos and, and updates, so I, I appreciate that.

William Maze: So I, I also, I teach forensic science at Madonna University. I'm just an adjunct professor only teach a couple of classes, ,but I teach these young forensic science students how expert testimony works. I've been qualified myself as an expert in breath testing, uh, uh, and field sobriety testing on a, a few occasions here in Michigan, you know, when the clients for another DUI attorney can't afford to bring in somebody like yourself from outta state. I am here just to kind of keep the officers honest when it comes to things like HGN and that sort of thing, and it's worked out well. So

Aaron Olson: How does that work when you're an expert? You, you obviously can't be an expert in a case that you're dealing with, can you?

William Maze: no, no, this would be for another attorney kind of doing it at less expensive say than, than somebody that's out of state. So for years.

Challenges in Field Sobriety Tests

William Maze: Michigan had a problem with field sobriety tests. We would have these officers come into court, conduct an HGN test in five seconds, and the judges had no idea how the HGN test was supposed to be performed by the officer.

And the officer would find, of course, six out of six clues, even though it was a five second HGM test with Maybe one pass or two passes. And so other attorneys and I conspired together to, you know, we are all nitsa trained. We've taken the classes, we know how the test works, and we agreed, Hey, you know, if you've got a client that needs me to come in, and likewise, if you want to come in, um, and, and help us establish how the HGM test is supposed to be done. And we met widespread opposition by a lot of the judges in, in, in doing this. But the problem was, is that they weren't being honest. And, and by doing it this way and by bringing in, you know, for the clients that were able to afford it, bringing in the out-of-state experts to explain how it was done, I. Uh, and along with some case developments, we finally got to the point where we've passed statutes here in Michigan that require substantial compliance with the nitsa requirements for standardized field sobriety tests before the officers can admit these tests. So it worked out great, but it was a long, long time coming.

Aaron Olson: Yeah. Yeah. That's fantastic.

Experience with Data Master Breath Alcohol Analyzer

Aaron Olson: Tell me a little bit about your experience getting training on the data master and you eventually obtained a couple of them. Tell me more about that.

William Maze: Sure. So John Fusco, who owned National Patent Analytics Systems down in Mansfield, Ohio. He had an open door policy with defense attorneys and he and Chuck Rathburn. Chuck Rathburn is a, is a DUI attorney himself. Uh, they were able to put together a course that Chuck promoted amongst the various DUI attorneys across the country and said, Hey, John Fusco iss more than willing to train you along with his chief engineer, Dave Radomski. And, and you, it cost a couple bucks. It was actually an inexpensive course, believe it or not. Uh, and you'd go down there for two or three days and John would teach everything that there was, uh, to know about breath testing. He covered everything from source code litigation to you know, some of the shortfalls of a breath testing.

John was a, again, a very honest, uh, manufacturer of breath machines. They produce the back data master the data master, DMT, and um, Oh, there's a another Data master. Data master Portable that's

out. They manufactured all those before. It was before it was sold to Intoximeters.

Aaron Olson: Yeah.

Issues with Breath Test Manufacturers

Aaron Olson: And once it was sold to Intoximeters, it, it, it's Intoxieters has a very different approach. They don't let much; they don't do anything with the defense community.

William Maze: not at all.

Aaron Olson: the, you can't buy a.

William Maze: it's funny. Here's a funny story for you. I was testifying as an expert on a case where a, a person was charged with a 0.17 BAC. They were charged with super drunk. And I showed up, uh, one of the breath test class four operators. Showed up to testify and Sergeant Perry Curtis, who was from the Michigan State Police and in charge at that time of the breath testing unit up at the Michigan State Police. All three of us testified as experts. I. To what this 0.17 meant. And we all agreed, we walked out into the hall, we all had agreed in our testimony that a 0.17 could mean something lower, could mean something higher, basically. And as I was doing this testimony, I, I was, I had a breakout in the hall and I finally broke down and, and called uh, John Fusco and said, John, I. You know, I've been doing this for a while now. I keep testifying regarding the DMT, and I think that it's time that I break down and actually buy one from you because John would sell you a data master. That's how I got my first back. DataMaster was from National Patent Analytics Systems. And, he Didn't care if, if, if you were with the defense, he would sell you their instruments. And finally, you know, it's three or four grand at that time. So I broke down and said, John, I'm, I'm, I'm willing to buy this from you now. And he said, I can't sell it to you, William. I. Why not John He had literally just signed the paperwork to transfer the company to Intox meters earlier that day, and this was news to Perry Curtis, and it was news to their class four operator who was actually one of their employees. Neither one of them had heard about this. They both came out into the hall after, after I was done testifying or after they were done testifying and immediately jumped on their phones. What's going on, what's going on? And sure enough, yeah, they had transferred it to intox meters. I. And Intox meters would not sell a DMT to the defense. Same thing with CMI with with their intoxilyzers. CMI actually goes even further I think than intox meters their stories back in the day of CMI, trying to avoid subpoenas pretending that they're not who they are and trying to actively avoid going into court to testify in the source code litigation that was ongoing. For a period of time, they're involving CMI. These closed door policies are absolutely terrible. John never had a problem with any of us in the defense, in, in the defense realm. Because if you had a question, you could call him and he would give you an honest assessment as to what was going on with a particular instrument. And if it hurt the defense or if it hurt the prosecution and helped the defense, he didn't care. It was, it was the science and that's. How forensic science is supposed to work. It's supposed to be something that we're capable of scrutinizing, and if it can't withstand scrutiny, then it, we shouldn't be giving it on over to a jury to consider, you know, whether or not the person is guilty based upon a flawed, a flawed a test. So.

Aaron Olson: Yeah. Yeah. Why do you think they've had this closed door policy?

William Maze: Well, I, I think that they see it as an adversarial process, and they're playing for a team. They're not playing for team science, they're playing for team government. And in this realm, I mean, they're, they're even closed lip with the police departments that they're selling their instruments to. So I've had, since we recently, just in the last month in Michigan, switched over to the Intoxilyzer 9,000 now Michigan State Police. They have a lot of documents and a lot of data pertaining to the intox in Intoxilyzer 9,000, but they don't have everything. And so, uh, me and Patrick Barone and, and other people that do a lot of DUI defense and, and there's an organization in Michigan called,, Michigan, OWI, attorney's Association. We've been working together to try to come up with discovery requests that we can send to the Michigan State Police to get the information that we need to be able to analyze is the instrument working properly? Is this breath test pro accurate? And, and, and the first step in that is trying to figure out what data to even ask for.

And unfortunately, so far, Michigan State Police have been responding to local prosecutors by saying to the prosecutor, you have to submit a Freedom of Information Act request. To get that information from us, and we don't even know if they've got the information. So it's, it's, it's unacceptable, you know?

Aaron Olson: It's a really poor policy for science. I mean, science, the hallmark is openness and transparency, and when you have things closed off, it just doesn't make sense

William Maze: Yeah. No,

the 2009, national Academy of Science report on forensic science, they, I don't think that they directly addressed breath testing. Breath testing is one of those carts that nobody wants to really rock. But when the National Academy of Sciences issued their report, they in, it was a widespread indictment of many traditional forensic science areas, such as hair analysis and, and blood splatter other areas of forensic science that might not be as sy let's say, as what the experts go into court and pretend it is. And they said that DNA and, and, and. Forensic toxicology that those have the traditional hallmarks of, of accuracy and reliability. But at the same time, I think that that was right around the same time that Massachusetts suffered, not one, but two major scandals dealing with their drug analysis labs, where people were literally dry labing, meaning that they were fabricating test results and people actually went to prison. Based upon those forensic results that were being churned out by these fraudulent forensic scientists. And, and ultimately, of course, as, as you know, Annie Duan went to prison herself and, and good riddance, I guess, that she's out of prison now, but she'll never work in forensic science again.

Aaron Olson: Yeah. Yeah. And talk to me a little bit about what happened in Michigan with the fraudulent calibration and maintenance that was happening from Intoximeters up there.

Michigan's Fraudulent Calibration and Maintenance Scandal

William Maze: Sure. Well, a, a Datamaster, a, a datamaster under intoximeters, I, I should say to be specific, when Intoxmeters picked up the, I don't even know what they call it now. it Was the data master, DMT and we continued to reference it as the data master DMT in Michigan, because that's what it set on the box.

Right. But, but when Intoximeters took it over. Michigan has a weird Well, we had, I should say, a weird contract provision in our request for bids that required the breath test manufacturer to maintain the devices during the life of the contract. And national patent analytics systems was the only breath test manufacturer that was willing to do this. None of the other major breath test, uh, manufacturers were willing to do a maintenance contract. With the state of Michigan that satisfied the state of Michigan. So we have these quote unquote class four operators that are really subcontractors of national patent analytic systems running around the state, doing their weekly simulator tests, uh, which at that time were were wet bath simulators, and then checking off the boxes and running a number of other tests. That weren't generally revealed to either the police department or to the defense. You had to call up national patent analytics systems to get, for example, whether or not the RFI check was performed properly, whether or not they ran a chemical interference test. You, you had to request that from John. And John of course. Would he'd just give it to you? No problem. Well, it transfers on over Intoximeters and a couple of the employees that had been working under Data MA under. National patent continued with their employment under totters, but then they picked up a few other people and maybe some other people left or retired. And these class four operators that were now working for toters, their required to test it every calendar week. And under Michigan case law, a calendar week was watered down to such an extent. That a calendar week could actually be like close to 14 days as long as it was done in that week and that week it didn't matter if it was 13 days apart, so long as it was a calendar week that they had tested. So it's not really rigorous that they have to do these, these the weekly simulators. But we also have a 120 day uh. Test where they, they have to run these and this is, I'm sorry, I'm, I'm, I'm kind of mixing up the back Data Master and the data master. DMT. The DMT then went to dry gas, so its weekly simulators were done every week automatically.

And that's been the goal of most breath test manufacturers now, is to automate the process so that they don't involve the local police departments with their wet bath simulators. The class four operators were required to come in every 120 days. So I'm, I'm sorry, I misspoke earlier when I was talking about the weekly simulators, the 120 days would be missed because these guys weren't being paid a lot of money.

Number one, they're required to get their own personal vehicles and drive all over hell's half acre. I mean, Michigan, Michigan is the size of the United Kingdom and driving from one point in the South Southeastern Point. In say, Detroit, all the way up to Barga County in the Western Upper Peninsula will take you as long to drive that distance as it will for you to drive from, say, Detroit to Charleston, South Carolina.

That's how long that distance is. But these breath test class four operators are required to go every 120 days and do all these wet bath simulators because they're still using wet bath. With the DMT at this stage, with their class four operators, along with the other diagnostic tests that need to be done on the, on the instrument, they're not paying 'em enough.

And these guys are driving their cars into the ground to try to go from point A to B, to C to D and maintain the schedule and they would miss the 120 days. Every so often. There's an attorney by the name of Josh Blanchard who's uh uh, grand Rapids area. Mr. Blanchard was in Iona Court which is a western, uh, court, district court in Michigan. When he was conducting a trial, the logs were, were brought up by the prosecution, and the prosecutor attempted to admit these logs, and, and Mr. Blanchard was able to compare the logs with what was actually done. And he found out that a 120 day test Had actually been missed and they had fabricated the date. Now he published this on a criminal defense attorney listserv and let everybody know that there's a problem in Ionia, and this is perjury, And, oh, you know, it, it was neither an no, no. That's not perjury. That's not, there's no attempt to hide anything here. Mr. Blanchard was the explanation. and and I'm sure I, if I'd have to call 'em to confirm this, but I'm a hundred percent certain that those logs were admitted and over objection, and they didn't care that a couple of days were missed. And then radio silence for a few months. We don't hear anything else about these fabricated logs. And I, I, I think I actually sent him a couple of emails, are there any updates? Nothing. And then out of the blue, all of a sudden the Michigan State Police. Send out a one page memorandum to all the prosecutors and some of the defense bars to let their, there are partners in the legal process know that there's a small problem and that small problem covers five or six different jurisdictions where the class four operators had been fabricating their 120 day test results. It didn't just stop there though, the fact that they were missing some of these dates, a lot of judges wouldn't care less because they don't care what it's about. And, and honestly, frankly, whether or not 120 day, uh, simulator test is missed or not. I mean, eh, does that really matter? Because if, especially if the machine still tests in compliance. Say a few days after that. Is that something that goes to weight or admissibility of the test result? I'm sure that almost every judge that encountered that issue would probably allow the test to come in and allow it to go to weight, but there is a problem with the dishonesty, the deception that's involved there, because these class four operators are reporting back through official publications through official state documents. That they did it on this day, even though it was that day, and, and Mr. Blanchard, Josh Blanchard, he was absolutely correct. This is filing a false statement, you know, and you're not allowed to do that when you're reporting things because oftentimes, these records are being admitted under a hearsay exception, the business record exception, these records are kept in the ordinary course of business.

That's the rule or justification for the business records exception. So if you go to a CPA and the CPA has entered business records on behalf of a BC corporation. Well, why would they fabricate these logs or these accounting ledgers and these, and these and these, they're kept in the ordinary course. So it's presumed that they're reliable because the business was relying upon them. And that is oftentimes the excuse that allows these logs get admitted in DUI cases to show that these tests were done according to the administrative rules, except that they weren't. And, and, and we have argued for years that these logs are created in anticipation of litigation.

They're used almost exclusively to be introduced as a physical document to convict somebody of DUI. Plain and simple, the courts have have repeatedly said, we don't care. They're kept in the ordinary course, and they are kept for other reasons as well, such as compliance with the administrative rules. And to show the police department that it's improper working order.

Well, neither here nor there, these logs were being fabricated. And the problem doesn't even stop there because we found out later on that not only had they been fabricating some of these test results, they had also given their passwords out to various police officers in these various departments. And that leads to another, another problem I. And that problem is once we've got the compromised passwords, everything now is on the table. We don't know who was accessing the data masters, why they were accessing them, and what they may have done once they were inside the program itself. Sky's the limit. Right? And let me take you back. I mentioned earlier. Sergeant Perry Curtis, Sergeant Perry Curtis was in charge of the Michigan State Police Breath testing unit for the longest time, and I had repeatedly sent up FOIAs to MSP. I had spoken to Perry. I had his, I've got his cell phone number in my, in my phone to this very day. I could call Perry and talk to him and he was never exactly candid or if he was being candid. He was ignorant. Okay. And I don't know which it was, if there's a, I, I don't know. To this day, Sergeant Perry Curtis swore up and down that the data master, DMT was specifically designed for Michigan to purge every test after it was done. So that if you blew into the machine, all data after that breath sequence was done, was purged from the data that there was no way of collecting it. No way of accessing it. It was gone forever. And I actually have Freedom of Information Act request going to Michigan State Police, factoring his reign, requesting access to this data. And they said that it didn't exist. Now, fast forward, mark Fondant, who originally is from Texas and was involved in breath testing down there, came up to Michigan and took over when Sergeant Perry Curtis retired, they wanted somebody with real credentials to run the breath testing unit because Sergeant Perry Curtis was at the end of the day, just a cop, you know? So they brought in Mark Fond, who has advanced education and involvement in breath testing. And he's placed in charge of the data master program, and that's when the scandal happens is after he has taken control of this. Now keeping in mind the electronic data does not exist. I know at this point that in order to ascertain whether or not the breath test, 120 day operators, if they're being honest or not. They're going to have to access electronic data if it exists. Now, if what Sergeant Perry Curtis has said is true and it's automatically purged, there's no electronic records that they can use to convict these guys. If, however, the electronic data exists, it's going to show us exactly when the 120 day wet bath simulators were actually conducted, and it's also going to show us when access was made by entering passwords and what changes they may have made internally to the machine when accessing that through a password. And, oops, the electronic data does exist. So for about the first 18 or 19 years of practicing DUI defense, I was repeatedly misled by the Michigan State Police who were telling us that the electronic data, electronic data does not exist. In fact, there's a huge amount of XML data files contained in every data master DMT and I and every data master case that I picked up after the scandal began, I started to request the XML data and this XML data, it's almost impossible to read their tiny little Computerized files, but if you put them into, say, a spreadsheet or you otherwise manipulate the data, it can be compiled into recognizable data and the dates are just patently obvious. This is what they used to convict these 120 day operators and, and, and at least one of them went to prison. I know that one of them has passed away at this point, but one went to prison and I don't know what the status of the other one was.

It whether they completed the criminal prosecution or not. But they used data that supposedly did not exist to criminally convict these guys. Um, of, I can't remember even what the counts were that they charged them with, but something to do with, with fraudulently entering these, these, these records these entries into these various government documents. So.

Aaron Olson: Wow. Wow, that's incredible. I mean, just to know that all that data that you could have had all these years was, was there the whole time. You can look at things in the data like the filter values, which can show potential for interfering substances. You can look at the graph file that shows how the person was blowing, whether that can be useful for refusals.

I mean, there's just so much data in there and, and, is there gonna be any repercussions for not giving that out in the past?

William Maze: Well, as I described it to some of my former clients, I think that there is you, you mentioned the fact that the graphing data is available in there, and this is something else that most DataMaster DMTs have graphing software. That was one of the big things that Fusco was pushing with how great this new Data Master DMT is, is that it would print out the breath flow, as well as the all call curve that was eliminated intentionally by Sergeant Perry Curtis and replaced with, I swear to God, a green light, a little light bar that you gotta continue to blow until it goes all the way up to the top. Why National Patent Analytic Systems ever agreed to make those modifications to the data master is absolutely beyond me because number one, the cost of that must have been just astronomical to make a change to a breath test instrument to satisfy the petty desires of a sergeant in the Michigan State Police so that he could hide that data from us was the just pinnacle of absurdity. And, and Sergeant Perry Curtis could never justify that to me. Never even tried to. Um, so. With refusals especially, it shows us what the flow value actually was. So when officers go into a Secretary of State hearing here in Michigan, under implied consent, trying to take a person's license away and impose six points, they would testify frequently. The person was faking it. He didn't actually blow, he wasn't making any attempt to blow, didn't blow into it at all. We now know that the XML data would've readily shown that that's not true. In instances where the person actually did attempt to blow, I'm not saying that the officers were all lying at these Secretary of State hearings, but in the instances where a person was making an effort to blow, but the machine refused it, we could have easily seen what the data was and provided that to the hearing officers, who in many instances would've said that there was no actual refusal. So.

Aaron Olson: Yeah. Yeah, that's too bad. Wow. That's, that's a lot to take in. How do you go about when you're, when you're building your defense for DWIs, where do you start with,

William Maze: Well, uh, sure.

Building a Defense for DWIs

William Maze: So what I tell clients is, is the first thing that they need to determine is what they wanna do with the case. You know, a lot of people have no desire to fight a drunk driving charge. probably the first or second question I ask when a person calls, what do you do for a living? Because that's probably the most critical thing. What do you do for a living if you're a commercial truck driver? If you're a doctor, a nurse, a lawyer, a police officer, a judge, a politician. Uh. A pilot, you know, these are things where there's red flags that instantly pop up. This is a person a, a, just take for example, a commercial truck driver. Let's say that they're pulling in six figures a year, driving the big trucks across the, the country, um, and they get popped with a drunk driving. If they lose that case, if they take a plea even to a reduced charge of impaired driving, they're done for a year. Michigan, you have to apply a year later, take the written and the practicals to try to get your commercial license back, and then you're not going to have a whole lot of people willing to hire you because of insurability issues, because of that prior drunk driving. In other words, this can be a career killer for a truck driver. And likewise, police officers. Lawyers, it's an automatic grievance for a lawyer. Police. I've represented a lot of cops over the years, and some police departments, no problem. They take 'em out of they put 'em on desk duty for a few months. Others, you're gone. You're done. You know, and so there are certain occupations where you have to fight the case, but if you get a call from somebody that's outside of one of these areas. Then Michigan has a presumption on a first offense, drunk driving, no accident, that there's no jail and no probation. It can be next to impossible to convince that sort of a person that they need to fight the case, and that's fine. I mean, I'm not going to tell the client that this is how you should do it. But the first question is, do you have to fight the case? Do you risk so much that you simply can't afford to walk in like a, there's so many attorneys that just, their entire plan is to just plead the person to impaired driving, dropping it from OWI or super drunk down to impaired, and, and that's no plan at all, basically, so the first thing though, when analyzing whether or not you've got a challenge, the stop itself, I have a case going on right now where, as you know, the National Highway Traffic Safety Administration describes their 28 different driving behaviors of an impaired motorist. I. One of those being that you're going a little slow going under the posted speed limit.

Come on now. That's ridiculous because especially in Michigan where we get ice and snow and black ice and that sort of thing, and deer are running all around in the middle of November as it is right now. You might slow down a little bit, especially when driving at night, and we have longstanding cases here in Michigan. That say that you can't stop a motorist if they're just driving a little under this posted speed limit. That is not a reason to stop a vehicle. I have a case though, where that's exactly why the officer stopped the vehicle for driving a couple of miles an hour under the posted speed limit. No weaving, no swerving, no nothing. If that traffic stop is deemed to be illegal, then all the evidence following that is suppressed. More often than not, though, you've got a legal reason to stop a vehicle, a burnt out headlight license plate is expired. The person is weaving or swerving or driving without their headlights, lawful traffic stop. They stop the vehicle and they go into that personal contact phase. And, and I look to see how bad are the signs of consumption. You know, we've got differences in degrees where Uh, a person has consumed alcoholic beverages and they have an odor of intoxicants. That's what we call it here in Michigan. The odor of intoxicants as opposed to an alcoholic beverage. But you know, that is just a sign of consumption. But then you've got the other person who is just absolutely hammered. If the person appears to be absolutely hammered, that's going to have no jury appeal whatsoever. That's not a case that you can necessarily challenge unless there's some medical reason or something else. I. To look at in that personal contact phase, but we can all agree that that personal contact phase, it might yield very little evidence, just enough to suggest that the person's consumed alcohol all the way up to, I don't even need to do field sobriety tests in this case. This guy's going, you know, and then of course the field sobriety tests. Uh, is the HDN test conducted properly if it's not conducted properly in Michigan? Then it doesn't get admitted. Under our case law, at least HGN is a scientific test and they, the prosecution bears the burden of establishing that the officer was properly trained and qualified to conduct the test on the subject. And two, the officer actually, properly administered the test. If they can't establish those two things, then they can't rely upon the HGM test, walk and turn and one leg stand. Of course, those go to weight. But with our new statutory language, we at least need substantial compliance. For the most part. I see officers that, you know, they'll make some minor deviations from the the standardized way of conducting the walk and turn the one-leg stand.

But I I think honestly, that we look at those holistically as well as, you know, it, it's gonna be something that the judge more often than not, allows to go to wait. And we've still got to this day, officers running around Michigan conducting non-standard tests. That just don't make any sense and don't really have much relevance or reliability. PBT was it done 15 minutes after the traffic stop? Did the officer reasonably ensure that the person didn't eat, drink, uh, regurgitate or place anything in her mouth before doing the PBT? The arrest itself is it's supported by probable cause. If it is not supported by probable cause. then they can't use implied consent to force the motorist to make that, uh, decision and take the test or lose my license. So probable cause works two ways in Michigan. Number one, if it's an illegal arrest, then you're entitled to suppression of stuff after that under just general Fourth Amendment rules. But we also have a case that specifically deals with implied consent. If they don't have probable cause, if they don't have enough for that triggering event, uh, that that makes them subject to implied consent, then officers can't use implied consent to what, what the Michigan courts call a hobson's choice. And you know, if there's a search warrant, the search warrant affidavit, does it actually spell out probable cause or was the magistrate completely off his or her rocker when they, when they signed it? And, and then lastly, you know, going to the actual forensic test itself, whether it's breath or blood or urine and, and I gotta say that in all of my career I've only had a handful of urine tests, but they are still done. They're still done. And the Michigan State Police Toxicology Unit, they just pull their hair out saying, please, please stop using urine tests. Please don't use urine. And yet these officers will. Occasionally submit a urine test. But breath and blood, you know, I've taken of course the breath training that I've talked about and a lot of additional stuff at the National College for DUI defense and then blood testing. I've I've gone off to numerous seminars. I even had the opportunity to go to is it a IT in Indiana? I don't see the certificate. A IT laboratories, way back in 2006, able to go in there and hands-on, you know, not, not allowed to actually use it, but able to touch it, able to see it, able to photograph it a, a complete explanation of gas chromatography F-I-D-G-C-M-S. And they even had these, uh, uh, liquid chromatography that, that just, those, those instruments are so insanely expensive. That I never thought that the Michigan State Police would ever be able to afford them. And yet, just a year or so ago, MSP toxicology was able to persuade, uh, the, the head cheeses that they needed liquid chromatography as well. So we've got all that stuff here in Michigan now, and going all the way back to 2006, I've actually seen these labs in operation.

And you know what an experience, because that science is so interesting, you know.

Aaron Olson: Yeah. Well, William, I so appreciate you taking time outta your day to come on the podcast and talk with me a little bit about DWI and breath alcohol and blood alcohol testing. You, you have any final thoughts before we end the call?

William Maze: I think that I did a lot of talking and I could talk for hours and, and, and we haven't even gotten into the war stories. The war stories are the best, but maybe save that for a different day.

Aaron Olson: Yeah, that sounds good. Well, thank you so much for coming on the podcast.

William Maze: Yeah. Great. Thank you.