Officer chooses not to give breathalyzer to Kent County prosecutor

GRAND RAPIDS, MI -- Grand Rapids police are reviewing an officer's decision not to give a breathalyzer test to a Kent County assistant prosecutor who struck a parked car going the wrong way on a one-way street.

Article here. 

The crash involving Assistant Prosecutor Josh Kuiper happened about 12:30 a.m. Saturday, Nov. 19 on Union Avenue at Avalon Terrace, south of Fulton Street. A person who was getting items out of the other vehicle had minor injuries and was taken to Mercy Health St. Mary's hospital for treatment.

He was later suspended from work, and asked to take a substance abuse evaluation. 

Low - Carb diets creating false breathlyzer results: News you can use!

We all know how dangerous it is to drink and drive, and how costly the charges can be to defend yourself if you are facing a DUI. (Need more info? Click here).

But did you know that your diet can cause an odd result on the breathalyzer? It's true!

From the Livin La Vida Low Carb blog:

It seems the breathalyzer tests used by law enforcement officials can register a false reading based on elevated ketone levels in your body. As you know, people who are on the low-carb lifestyle, especially in the most ketogenic stages eating around 20-40g carbs daily, induce heavy ketosis in their body to begin burning all that stored fat that’s inside of them. That’s what makes low-carb work so spectacular!

But a recent experiment by a scientist friend of mine showed those excess ketones that come from livin’ la vida low-carb can actually show up on the breathalyzer test in a negative way and create a false positive for the presence of alcohol.

The Wednesday before Thanksgivng is one of the biggest "bar nights" of the year.

Since the Wednesday before Thanksgiving is one of the biggest "bar nights" of the year, here is a review of drunk driving law in Michigan. Don't take risks that could be avoided!

If you're thinking about going out for a night of drinking, and then getting behind the wheel, here are some things to consider.

Michigan law regards any BAC (blood alcohol content) above .08 percent as "impaired" driving, for a driver who is over age 21. Of drivers under age 21, any BAC at .02 percent or above is considered impaired (also known as "zero tolerance" of impaired driving for underage drivers). Also, it's illegal to drive under the influence of any amount of cocaine or a Schedule 1 controlled substance in your body. (For more information about Schedule 1 drugs, see section 7212 of the Michigan Public Health Code; MCL 333.7212.)

If you're impaired (between .08 - .16 percent BAC) and this is a first offense**, fines and penalties will be:

• Up to $500 fine
• Up to 93 days in jail
• Up to 360 hours of community service
• Up to 180 days license suspension
• 6 points on a driver's license. 
• There's also the possibility you'll be required to use an ignition interlock device.
• A reinstatement fee of $125 if your driver's license was suspended, revoked, or restricted. (More information at MSP and Michigan SOS).
• This doesn't include lost time at work, lost wages from attending court, meetings with your attorney, time spent doing all the required community service, paying your attorney, and so on.  

Michigan has changed its law recently to include a higher BAC  with a higher penalty, also known as the "Super Drunk" law. If your BAC was .17 or higher,and this was a first offense, penalties are:

• Up to $700 fine
• Up to 180 days in jail
• Up to 360 hours of community service
• Up to one year license suspension
• 6 points on a driver's license
• Mandatory completion of an alcohol treatment program
• Ignition interlock use and compliance after 45 days license suspension is required to receive a restricted driver's license. Convicted drunk drivers have limited driving privileges, are prohibited from operating a vehicle without an approved and properly installed ignition interlock device, and are responsible for all installation and upkeep costs for the device.
• A reinstatement fee of $125 if your driver's license was suspended, revoked, or restricted. (More information at MSP and Michigan SOS

Michigan "ratchets up" fines and penalties when it's a second or third offense, with a third offense being a felony. And penalties go up if there's a death or serious injury. Also, refusing to take a chemical test to test your BAC results in a license suspension. But if you're still in the car, and not arrested yet, the PBT (preliminary breath test) and other roadside sobriety tests can be refused. Related article from my blog here. 

If you already have gotten arrested for drunk driving, it's essential that you hire an attorney who can defend you in court. A good defense attorney can perhaps get results of your BAC test thrown out, suppress incriminating statements you may have made, or perhaps throw out the traffic stop altogether. 

Want to calculate your potential BAC? Try this website.  Keep in mind that what you ate, how long ago it was, how close together your drinks were, how much you weigh, and how often you drink are all factors that can affect your BAC.

** And there are no fatalities or serious bodily injury. Different fines apply for drivers with a CDL endorsement as well.  

What should I do if I get pulled over?

If you get pulled over, remain calm and remember your rights.

1. Don't admit to anything. If the officer asks "You know why I pulled you over, don't you?" answer "No." Aside from being a leading question, this question also affects your Fifth Amendment right (to not incriminate yourself). See related material here. 

2. Don't consent to a search. An officer can do a search without a warrant in some situations, based on what's called "probable cause." This means that if they think it's likely (more than a reasonable suspicion) that evidence of a crime can be found in your car, they can search. Or it could just be that the officer who wants to do the search is bored, a little suspicious, or wants to act like a jerk. Make it clear that you're not consenting to any search at all. Refusing to let the search happen doesn't mean you're guilty, it means you're aware of your rights, like the Fourth Amendment.

3. If you feel so inclined, you can videotape your traffic stop. It's not illegal to videotape police, although it may make the atmosphere feel more confrontational. Again, stay calm and remember your rights. You can also ask (politely, of course) for the officer's badge number and name, or patrol car number. The police are the only game in town, which means they keep doing their job, and we keep paying them, but we have very little say as "customers" of their service. But we can still report their behavior to their superiors, or the media, if need be.

4. An officer can ask for your driver's license, and proof of registration. Michigan has a statute on consenting to this as a condition of being allowed to drive.

5. If you're suspected of driving while intoxicated, an officer may ask you to do a roadside sobriety test. You are free to refuse the tests. What the officer is looking for is probable cause to arrest you. This means that the less you say or do that shows evidence of intoxication, the better off you are. So refuse (politely, of course) to perform the tests. More information here.
You won't get a lighter sentence because you were nice to the officer and did the tests. Doing the tests just gives more evidence, and leads to probable cause = you're arrested.

6. Roadside breathalyzer (PBT). Michigan has an implied consent law. This means that if you are arrested (not just pulled over) for driving while intoxicated, you are considered to have given your consent to have your blood alcohol content (BAC) test. However, the PBT at the car can be refused, and refusing will result in a fine and/or civil infraction. If you are arrested, however,  attempting to refuse the chemical test at the station can have serious consequences.