Ignition Interlock Violations and the Michigan Secretary of State

By Jeffrey J. Randa

In our roles as Michigan driver’s license restoration lawyers, we handle a lot of ignition interlock violation cases. We regularly save people from having their licenses permanently revoked. Many interlock violations seem unnecessary, and indeed, some really are unfair. However, there are also others that arise because a person does, in fact, test positive after having consumed beverage alcohol. In other words, they get caught drinking. Those situations are, by far, the worst. In this article, we’ll explore how to best handle an interlock violation.

First, it’s important to understand that when our firm is hired to get someone out of an ignition interlock violation, we have to do a lot more than just show how or why it’s wrong. In fact, that’s often the easiest part of handling a violation case. A notice of ignition interlock violation provides, among other things, the date when the person’s license will be revoked again. Before a hearing date arrives, the person’s license will already be gone. The point of a violation hearing is about getting it back, but the whole process involves a lot more than just that.

Rather than grumble about how much this whole situation sucks, we’re going to focus on fixing it. To be sure, the Secretary of State’s entire interlock system could be revamped so that simple interlock mistakes could be more easily rectified. As we acknowledged in the opening paragraph, having to go through this can be unfair. However, and as the old saying goes, “it is what it is.” All the complaining in the world isn’t going to overturn a pending ignition interlock violation. Instead, we have to do what’s necessary to win.

That begins by explaining both the finer and more general points of an ignition interlock violation:

When a person is granted a restricted license requiring use of an ignition interlock (technically called a “BAIID,” for “Breath Alcohol Ignition Interlock Device”), certain rules apply. He or she must do certain things, and cannot do others, as a condition of having restricted driving privileges. In that sense, having to use an ignition interlock is very much a probationary step to regaining full driving privileges.

The Michigan Secretary of State includes instructions in every order granting a restricted license. They can be found in the section entitled “Notice of Proper Ignition Interlock Use.”

By far, the most critical and non-negotiable condition is that a person NOT consume any alcohol. For as important as that is, it is not the end-all of what’s required, though. For example, the rules also mandate that a person provide a timely breath sample when prompted by the interlock unit. Of course, the fear is that if someone skips a test, it’s because he or she has been drinking. However, even when a violation for a skipped rolling retest can be shown to NOT involve any drinking, that, by itself, doesn’t excuse the missed test.

To be sure, there can be a good reason for something like missing a rolling retest, and, in a perfect world, there would be a much simpler way to explain why in order to avoid an automatic ignition interlock violation and the re-revocation of one’s license. However, and as was noted above, “it is what it is,” and we have to work within the law and rules as they exist.

Here’s another real life situation frequent arises: A person gets violated for something like a “Tamper/Circumvent” because his or her battery died, and they can show they replaced it. Similarly, a “Tamper/Circumvent” violation can occur when someone has work done on his or her vehicle and the shop manages to screw things up because they didn’t properly arrange things with the interlock company.

This is certainly frustrating, and can just be downright unfair, but, as we keep saying, “it is what it is.” Either a person is going to fight the ignition interlock violation, or just let their license stay revoked.

The worst situation, by far, occurs when a person does drink, and then tests positive on the interlock. This most often happens when someone thinks they can “time” their drinking. They figure that by the time they have to blow in the interlock, they’ll be clean. This frequently takes place when someone drinks at night, and figures everything will be fine in the morning. What happens though, is that things don’t work as planned, and then they get a positive test on the interlock and wind up having a real problem.

For all the advice I could give, here’s the absolute best way to avoid this issue:

DON’T DRINK!

Seriously. Not to be indelicate about it, but talk about playing with fire! First of all, anyone who won a license appeal convinced the hearing officer that he or she had quit drinking and was a safe bet to never drink again. Anyone on an interlock is supposed to be committed to an alcohol (and drug-free) lifestyle.

The WHOLE POINT of the interlock is to monitor that and makes sure a person follows through with not drinking, and protect the public in case he or she does have a slip and then tries to drive after imbibing. If someone goes out and drinks – even once – then gets caught, the interlock did its job. Anyone in this situation is screwed, and there’s not a whole lot of sympathy out there for him or her from anyone, including us.

Our firm will NOT take an ignition interlock violation case if a person has admittedly been drinking. We’ll defend a false alcohol reading with all our might, but that’s a lot different than when a person simply gets caught drinking.

As noted above, there are some people who will overdo it at night and think they’ll be fine by morning. Then, they go out the next day, and the vehicle won’t start because their breath alcohol level is too high. If such a person continues to provide breath samples, as required by the rules governing interlock use, it will become clear that he or she is metabolizing alcohol because they had been drinking.

Some people will just bail out and leave the vehicle, knowing that any further breath tests will just confirm that they had been drinking. While there is some truth in that, it’s also true that the Secretary of State considers the failure to continue to test as evidence that a person had been drinking. Failing to continue to test, as required, always works to a person’s disadvantage.

This is a whole different ballgame than if someone ingests the kind of yeast that can cause a short, false-positive “mouth alcohol” reading. That kind of alcohol dissipates in a few minutes, and continued testing will confirm that.

Also, as the “Notice of Proper Interlock Use” instructs, following a positive breath result, a person should immediately get a PBT test from a police or sheriff’s station, or else get a timely EtG urine test within 12 hours. By skipping all of that, a person is basically burying themselves.

My team and I have won plenty of ignition interlock violation cases where someone didn’t get a PBT or EtG test, but those almost always involve a person who didn’t consume beverage alcohol continuing to provide breath samples into the device. When someone does that, mouth alcohol will quickly evaporate in a way that would be impossible if he or she had actually been drinking beverage alcohol.

In most cases like that, my team and I can rather easily demonstrate that an alcohol reading is “wrong,” and that our client had NOT been drinking.

When a person has been drinking, though, the evidence of that tends to be rather self-evident.

By law, anyone facing an ignition interlock violation has the legal burden of proving his or her case. This means one can’t just show up and merely say that the interlock device malfunctioned. Instead, he or she has to prove it.

In fact, that exact situation, involving a malfunctioning interlock unit (usually, it’s the handset), is NOT that uncommon. When that happens, we must, among other things, present paperwork from the interlock company showing that they tested out the old unit, found it to be faulty, and then installed a replacement.

This all probably makes sense, but as pointed out at the beginning, there’s a lot more to a violation than just the violation.

First, and generally speaking, a ignition interlock violation hearing will be heard by the same hearing officer who originally granted the license restoration appeal. When a person appears for it, he or she can expect to be questioned about all the information provided in their prior appeal. The Michigan Secretary of State – and the hearing officers – want to make sure that the answers provided at that first hearing are the same as the person gives now.

In a very real way, the hearing officers use a violation hearing as an opportunity to make sure that the original decision to grant driving privileges was, in fact, correct. This isn’t really a problem for our clients who won, because we only take cases for people who are genuinely sober. Even so, it’s always a good idea to refresh one’s memory of what was submitted at the original hearing. That, of course, means going over everything.

Obviously, when asked about things like his or her sobriety date, a person must be consistent. It goes beyond that, though. It’s important, for example, to remember what was conveyed in both the substance use evaluation AND the letters of support, as well. This isn’t about BS-ing one’s way through a violation, but rather about NOT forgetting something that could be important (at least to the hearing officer).

There are plenty of ignition interlock violation cases that involve some kind of technical problem where it’s obvious that there was no drinking was involved. In some of these cases, the hearing officer may not dig as deep to confirm a person’s prior testimony, but he or she will still review a person’s past evidence, and make sure that his or her answers at the violation hearing are consistent with all of it.

However, when there is any kind of real question about whether a violation resulted from a person drinking or not (or otherwise having skipped further testing in an attempt to cover up his or her drinking), it’s a certainty that the hearing officer is going to really go over things with a fine-tooth comb.

In terms of a decision, the hearing officers have 3 main options:

1. The violation can be dismissed, and the person goes back on his or her restricted license and interlock, with credit for all time accumulated up to the point of the re-revocation.

2. The hearing officer can decide to simply uphold the violation, and the person’s license remains revoked. This means he or she will have to start the entire license restoration process all over again.

3. The hearing officer can put the person back on a restricted license with the interlock and extend the time he or she must drive under those conditions before being able to request full driving privileges beyond that initial year.

In the real world, and most of the time, a person either wins (#1), and the ignition interlock violation is dismissed, or loses (#2), and then has to start all over again.

As Michigan driver’s license restoration lawyers, our job is to win. While we can’t guarantee the outcome in an ignition interlock violation case like we do in regular restoration and clearance appeal cases, we are NOT interested in taking someone’s money just to lose. That is exactly why we won’t take a violation case if someone has been drinking. We certainly aren’t going to have someone walk straight into a loss, or, worse yet, lie under oath.

Nor, for that matter do we want to appear and try to pass off some BS or losing argument to the hearing officer, either. We never want to be perceived as anything less that excellent and HONEST driver’s license restoration attorneys.

If you’re facing an ignition interlock violation and looking for a lawyer, be a wise consumer and read around. Pay attention to how different lawyers break down the whole license restoration and violation process, and how they explain their various approaches to it.

This blog is a great place to start. To-date, I have written and posted over 690 articles in the driver’s license restoration section, and plenty of them are about interlock violations. Our blog is updated weekly with a new, original article, AND it’s fully searchable. The reader can likely find the answer to any question he or she could ever have about driver’s license cases.

Once you’ve done enough reading, start calling around. You can learn a lot by speaking with a live person, and that’s exactly what you’ll get when you contact our office. All of our consultations are free, confidential, and done over the phone, right when you call. Make sure you give our office a ring as part of your lawyer search.

My team and I are very friendly people who will be glad to answer your questions and explain things. We’ll even be happy to compare notes with anything some other lawyer has told you.

We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST) at 586-465-1980.

About the Author

Jeff has been a practicing Michigan criminal lawyer, DUI attorney and driver’s license restoration lawyer for more than 30 years. He is passionate about winning and doing whatever it takes to accomplish that. He understands that a pending criminal or DUI charge is stressful and that being unable to legally drive is a huge problem.