Kevin: Welcome back to the Kelly and Kelly Law Podcast. I’m Kevin here, and I’m joined once again by Mike Kelly, head of the Criminal Defense Department at Kelly and Kelly PC. Hey, it’s good to see you back, Mike.
Mike: Glad to be here, Kevin, and I’m an excited guy today because we get to talk about ignition interlock devices.
Kevin: Exactly, it’s a very, very interesting topic, and it, there’s a lot of different nuances with the law here, so let’s take it at a high level. What is the what is an ignition interlock device, for those who don’t know, right?
Mike: So, the formal acronym is a BAE device, a breath alcohol ignition interlock device, and this is a machine, a mechanism that is installed in a vehicle that prevents a person from starting that vehicle if they’ve been drinking and if they blow a breath sample that rises to a level above a point 025 This is a device that is used both by the Secretary of State in Michigan and in district and circuit courts across the state of Michigan, so this is a mechanism that is really common for people who are facing DUI cases. This is a mechanism for people who are on restricted driving privileges with the state of Michigan through the Secretary of State, and it is a machine that is fraught with questions and many problems. So, there’s a lot to cover here today.
Kevin: Interesting, and I know sometimes with sobriety court of those, the unfortunate individuals I’ve known who have been on probation, generally they were required to blow in at a certain time; however, they didn’t have this device, talk about, I guess, the differences of when they assign you to blow into a certain device at home versus an inner, is it one or the other, both?
Mike: Right. Well, the, the ignition interlock device is a breathalyzer device that you keep with you at home, so to speak, but it, but in your vehicle, and the significance is that it can be used to also receive a regimen of tests, so if you’re required to test at certain times throughout the day, you could use your alcohol ignition interlock device to submit those tests, otherwise it’s just used for the primary function of if you’re going to be driving. This is a precursor to be able to start in that car. You must provide a sample into that test. So, there are some courts, like I know around here in Novi, there’s there’s certain judges that if your case comes in and there’s certain factors, say it’s not your first offense, or if you blew a certain level, like a higher BAC, let’s say north of a point one four, a court may require you as a condition of just your bond, which is the privilege that allows you to go home and sleep in your own bed while your case is pending, just as a condition of that to install an ignition interlock device in your vehicle, in any vehicle you may operate, so if you’re saying, ‘Hey, I drive more than one car, my wife has a car, or I’ve got a work vehicle, any vehicle you operate will be required to have this ignition interlock device installed in it, and these things are expensive too. They’re pretty, pretty readily available for the courts to require you to use them, there’s a retailer, a service provider that will install this. It’s not some fancy building or offensive place, it’s just like an auto body shop that has a contract with the state of Michigan that they agree to follow certain procedures. They agree to make sure these devices are calibrated properly, and we can talk about that later. But how do I know that this device is functioning properly? But yeah, we’re seeing these being used not just as a condition of probation, but also as a condition of bond.
Kevin: Interesting, that’s an interesting nuance. And, and what happens if somebody fails a test and blows in and registers some alcohol, or..
Mike: So the crazy thing about this is, is when you blow into an alcohol ignition interact device, it doesn’t tell you what you blew, it doesn’t say hey this was a point 08 or hey this was a point 025 which is, you know, some of the threshold cutoff numbers that you need, it’ll just say fail, or it may just have an error message, and you’re not really sure what that, what that means. Before we go any deeper, I want to provide, right off the bat, my best advice I could possibly provide with ignition interlock devices. When in doubt, get an ETG within 24 hours, and that is a urine test that’ll go back at least the 24 to 48 hours, sometimes up to 72 hours, that will show I may have had something going on with my machine, but it wasn’t because I was drinking, so this is a big caveat, when in doubt, ETG, so this device. Case, while although it may not start your car if you’re at a certain level, it also is just registering information that you may say fail, and then it could say pass, and yeah, maybe you go on your way, but you could receive a notice in the mail from Secretary of State or the court if you’re on probation or on bond with the court that says we received a report of a violation of your ignition interlock agreement, and what is what is a violation? Yes, we talked about it, could be the presence of alcohol, but it could also be that you’re not using the device properly as you agreed to. Welcome to the world of law, where there’s an ignition interlock contract that you sign at the end and make sure you read it, because it spells out everything you agree to do while using this device or not. Do so, there are things like retesting procedures. I already provided a test. It’s cold, it’s winter. I want to go back in and let the car warm up. Nope, it will prompt you for a retest even when the vehicle is not in motion, and if you are not there to provide the retest, it could result in a missed test or a fail. You may not even know that there’s a fail because you left your car and weren’t there to watch. So, there’s testing procedures that must be followed beyond just the protocol of, oh, don’t drink, I should be fine. You also have to make sure that anyone else using your car, your spouse, a service guy, the oil change guy, your parents, whoever else, they must follow and use the device properly too. This machine has a little tube on it, and it registers things like breath, breath temperature, volume of breath sample provided. If you’ve ever seen any of the videos that are out there on this, there’s like a humming that you need to be able to provide. It’s a vibration that’s created. If you’re not providing a prep for breath sample, it’ll say fail, retest. And again, so anybody else that is using the device also has to be held to the same standard, so it’s not something to be taken lightly. When you understand there’s a contract that you’re going to agree to all these things of how to use it, you’re also going to agree that you’re not going to do certain things like eat or ingest something right before using it. You’re not going to use mouthwash or alcohol products, you’re not going to sometimes coffees and other things like that. Don’t put anything in your damn mouth right before you blow into this device, because you run the risk of having a having a failed test or an unaccepted sample. And certainly don’t ever walk away from the device without getting in at least a couple more minutes of passage time, where they’re not prompting you for a retest.
Kevin: I didn’t know that it actually prompts you for a test. I didn’t even think of that of other people using the vehicle. I feel like that might be a little bit of an awkward conversation, of the like the example you provided, the oil change guy, like, oh, by the way, you got to blow into this thing.
Mike: Well, and that’s what one of the big features of the Ignition Interlock device is that it has a camera, and so the what will happen at the end of servicing period, or whatnot, they download all the information out of the machine, and they populate it into what they call an annual report, and the annual report will contain all the events that you had experienced during your testing procedure, and if there’s any anomalies, any fails, heat issues, breath sample issues, any, any rising or dropping DAC issues, any loss of power issues, these are other things that we commonly see.
Kevin: Oh, wow…
Mike: For example, you go and you look, you’re these machines will kill batteries, it is why, and they’ll kill entire cars too. The Interact retailer doesn’t want to take responsibility for that, but just watch this come out over time, and let’s say it kills your battery, which it always does, and you gotta go and get your battery replaced. If you don’t do the right things under your service contract, how to replace this battery, and even when you do do the right things, of calling up Nationwide Interlock, or whoever the servicer is, says, “Hey, I need a new battery, I’m at the store to get a new battery. There’s about to be an event happening, I know it’s going to report as a fail of a power loss. It doesn’t mean that I’m tampering or circumventing the power source to try to get the car to start, so it won’t register my route sample, but if you take the battery out and your car loses power, that device that’s installed in your car loses power, and it will report it on your annual report as a power loss, and these will be the events they go through and scrutinize, and on that printout they’ll show that here’s Randy from AE A Auto, who can vouch that he was the one on the camera, and you can see him pictured there, but again, you’re responsible that if Randy’s in there and there’s a power loss because he takes out the battery, or he doesn’t blow when it prompts him to blow after starting up that video. Cole, even though it shows him on camera, you’re still going to get reported to Secretary of State or reported to who’s ever requiring you to use the signation interlock device as violating the interlock agreement.
Kevin: Like we said, a lot of nuance to these interlock devices. Is it a myth or is it true that there can be false positives associated with certain foods or things like, you know, like energy drinks.
Mike: No, I don’t think it’s a myth. I think it’s certainly true, and I’ve seen plenty of them. And here’s the caveat on that is that any residual non-alcoholic beverage consumption alcohol presence, like if it was from a mouthwash, toothpaste, lipstick, I don’t know, whatever might be something that is could have a, an aura of alcohol without it being from alcoholic beverage consumption, should dissipate within 15 minutes, so in your ignition interlock agreement it’ll spell out and provide that if you receive a, and again, it won’t say positive, you won’t know, it’ll just say fail, and it’ll prompt a retest, but within that retest period, there will be a time of 15 minutes that you’re allowed to provide a passing compliant sample.
Kevin: okay…
Mike: And any of these residual alcohol products, or something that might, might have set the new machine off, but isn’t alcohol, that that level should drop very quickly within the 15 minute period that you’re retesting, and there’s a, it’s a rebuttable presumption under the administrative code with Secretary of State that if you provide a passing sample within the 15 minutes and that’s a sample that registers below a point 025 then there’s a presumption that it wasn’t from beverage consumption and therefore was not a violation due to consumption of alcohol, but again, where people get zinged on this is that they’ll say, “Hey, I kept testing, I kept testing, and it eventually cleared, and I had no issues. And then, whenever they’re up to get this device out of their vehicle, they’ll meet with Secretary of State, and they’ll go through that annual report, and the Secretary of State officer will say, “Well, what about this event? And you’ll say, “Well, yeah, I remember that saying fail, and I kept passing, but eventually it said I was okay, and I was able to start my car, and they’ll say, “Well, did you get an ETG that day? You’ll say, “Well, I didn’t think I had to, because I was using the freaking breathalyz that’s there to make sure I don’t have alcohol. When in doubt, what did I say? Always ETG, any fail, any issues with your device, get an ETG. It’ll be your failsafe to say, ‘Hey, you’re right. I did keep testing. It was there, but also see attached Exhibit A. I got an ETG that day because I know you guys are sneaky with this stuff. I know you don’t take my word for it, and I want to prove that none of this was from what you think it is, and I don’t want to give you one more reason to make my life any harder.
Kevin: Yeah, that’s good advice. So, you know, one, obviously, don’t drink and drive, but two, if you did, if you did make a mistake going through a hard time in your life, made it, it’s important to get an attorney and understand that contract and understand the process.
Mike: Oh, and I get this all the time, Kevin, where, like, you know, I’m giving people the information, and even though it’s, you know, like it’s not like it’s all like hidden secret, and a lot of this is just from experience, and a lot of it is in that, you know, in that service agreement with the interlock, but people like, grant, if I had just done this, if I just done this, and it’s, it’s unfortunate that, you know, my best advice sometimes is the advice that serves you going forward, and we really can’t go back in time and undo what’s been done, but hopefully people get out there, get on the internet, watch this video, and understand the importance of getting an attorney involved, understanding what your requirements are, and having a plan in place before you know you need one.
Kevin: You’ve covered a lot of information on this, I can see you’re very experienced in this area. What is the removal process like? How long do they, is it typically required, and what must be completed before removal?
Mike: So, if we’re, if we’re focusing on, you know, a secretary of state action, typically that’s going to be a one year period of use of the ignition interlock to show that you’ve properly used the device and you’ve demonstrated proper use of the device, which goes to the second component of demonstrating abstinence for 12 consecutive months or more under the administrative rule 13, that would be the typical period that’s required on a Secretary of State revocation action, where you’re working on a restricted privileges, trying to get back to full unrestricted. You could also be dealing with a high BAC scenario under the Michigan Super Drunk Law. There’s a requirement that. You have the ignition interlock device installed after an initial 45 day revocation or suspension of your license. At the end of that year period, they would download your report of no issues. You just pay a reinstatement fee and have the device removed. You wouldn’t have to go through a full hearing on a high BAC interlock removal, unlike a secretary of state revocation, you would still have to go through a hearing, present proofs, including the annual report from the ignition interlock device, a 257 request for hearing form, a 258 substance use evaluation form, three to six letters of support verifying your abstinence, how long the person’s known you, known you to have drinks or not have drinks, what their knowledge is of your sobriety and recovery programs, and you’d also have to provide a 13 panel, a 1213 panel drug screen with at least two variables to confirm no dilutions or adulterants. Again, this is all information that is out there in the cyber sphere, but unless you have an attorney help you navigate these things. It really is a daunting process, so you take some time, it takes some steps to get it removed. And no, you can’t just go out there and say, ‘Hey, the day is up, I’m going to go have Randy from AE Auto just pull this thing out of my car. Don’t do that again, that will result in a tampering circumvention, a power loss event, which could kick you right back behind the eight ball and force you to have a further period of suspension.
Kevin:Yeah, and if it’s not not documented and you don’t have really a good explanation, I can see that not looking too, too good on your court report or probation.
Mike:Absolutely.
Kevin: All right, Mike. So we’ve covered a lot of information on inner ignition interlock. Is there any final advice that you’d like to cover?
Mike: You know, like, as I said, and I, you know, I can’t say it enough. You know, have a plan, read your agreement, be aware, be prepared when in doubt, when any issue, when something funky or you’re just not sure, have a makeup test, have an ETG. Stop at the nearest police station in PBT on your way to get that ETG. If you don’t know how to get an ETG, go to the ER, go to urgent care, go somewhere, do something, but do not leave a questionable interlock reading to chance it will bite you on the backside, and you will be wishing that you had done something more than just hope that they see it’s been x number of months and days that I haven’t had a drink. Why would I go out and do it this time? Because somebody else already has, so they don’t know you from Adam. Be smart, be prepared, and contact me at the soonest opportunity.
Kevin: Leave no stone unturned. Thank you for sharing your knowledge on this area, Mike.
Mike: Absolutely, thanks, Kevin. Appreciate it.
Kevin: Thanks again for your time, and happy Fourth of July, everyone.
