A great defense that our drunk driving trial lawyers have used with great success in Oakland County is to argue that the defendant had alcohol in their mouth when they blew into the Datamaster DMT machine. This argument is far from far-fetched as most of us have probably experienced the feeling that you have thrown-up into your mouth. Not to be disgusting, but when that happens, you can taste the contents of your stomach. When you consume alcohol and this happens, the reason why you can taste your last beer is because your last beer is actually coming back up into your mouth. And when there is alcohol in your mouth, there's a good chance that the result of the breath test machine is not correct.
This phenomenon is so important that the Michigan State Police have taken numerous protective measures in the Administrative Rules in order to prevent this from happening. The Administrative Rules require that officers actually sit there and watch the suspect for fifteen minutes prior to the administration of the breath test. If the suspect regurgitates, sticks something in their mouth, or if the officer can smell alcohol, then they are required to clear the mouth and restart the observation period. As the officers will testify at trial, the reason for this is that if alcohol enters the mouth, then the Datamaster DMT can be inaccurate.
Drunk driving trial lawyer Jim Amberg recently had a hung jury in the 48th District Court before Judge Baron where Jim's client blew a .12 on the Datamaster DMT. However, in watching the video of the stop, Jim noticed that his client had complained about a cheese pizza he had ate prior to driving home from the bar. After a tough trial with a very skilled prosecutor, Jim was able to convince multiple jurors that the cheese that was stuck in his client's throat caused the breath test machine to be off. The jury then was unable to reach a verdict and the prosecutor eventually offered Jim's client a disorderly person.