Skipped Rolling Retest Ignition Interlock Violation in Michigan

One of the most common ignition interlock violations in Michigan arises from a skipped rolling retest. From our perspectives as Michigan driver’s license restoration lawyers that handle about 200 license appeal matters each year, this is probably the second-most frequent interlock violation, right behind those for a “tamper/circumvent” incident. Beyond the fact that both of these are violations, they have little else in common. A skipped rolling retest is always serous business. In this article, we’re going to take a closer look at this unfortunate situation.

Don’t despair, learn how to fight a skipped rolling retest violation.The whole point of an interlock device is to prevent the person required to use it from operating a vehicle after consuming beverage alcohol. As the reader knows, the interlock unit, technically called a “Breath Alcohol Ignition Interlock Device,” or “BAIID” for short, requires the driver to provided a “clean” breath sample (meaning a BAC of less than .025) to start the vehicle, and thereafter requires, upon request, further samples as the vehicle continues to run. Missing even one of those tests will give rise to an automatic skipped rolling retest violation.

A little history will help shed some light on the importance of rolling resets. For many years, there was no such thing as a camera as part of a BAIID unit. Thus, Tricky Tom could have spent the night drinking, and then had his friend, Sober Sam, blow into the unit to get his car started, and nobody would have been any wiser. That kind of tactic won’t work now, because all interlock units have a camera, and it will generate a picture of whoever provides a breath sample. We’ll examine the potentially important role of the camera in a skipped rolling retest violation later.

If Tricky Tom was driving alone, he’d know that providing a breath sample for a requested rolling retest would show he had been drinking, so he would very likely just skip any requested test and NOT prove himself guilty. Then, when the Michigan Secretary of State (SOS) issued a missed rolling retest violation, he’d try to come up with some excuse for missing the test when he was called in for a hearing. That kind of tactic won’t fly now, because how interlock violations work has changed a lot over the years, and that’s important:

For a long time, if a person had any kind of interlock violation, like a skipped rolling retest, he or she would receive a notice in the mail requiring that they appear for a hearing and “show cause” why their license should not be revoked. In other words, the hearing was set automatically, and the person could drive on his or her restricted license until a decision was made afterward.

Then, some years ago, the Secretary of State changed the rules: Miss a test (or trigger any other major violation), and it will be presumed that you were drinking and your license will automatically be revoked (one might say re-revoked) before any hearing.

Now, instead of a show cause hearing, a person is simply notified of the violation and informed that his or her license will automatically be yanked in a few days. The notice informs the person that if he or she wants to contest the violation and try to get his or her license back, they MUST request a hearing within 14 days.

If that doesn’t happen, or they lose at their violation hearing, then the license will stay revoked. If the person ever wants to drive again, the entire driver’s license restoration process must be started all over again, from square one.

In my very recent article about tamper/circumvent ignition interlock violations, I pointed out that the vast majority of them are not the fault of the person required to use the interlock unit, and that my team and I have won every one of the hundreds of those that we have handled.

Although what’s at issue is different here, most skipped rolling retest violations are also NOT because the person ordered to use an interlock was drinking. Remember, though, that a missed test is basically taken as a presumption that the person was drinking. This means that to win his or her license back, a hearing will have to be requested, and then won.

Now, let’s turn to how the camera can be helpful in a skipped rolling retest violation situation:

Roughly around the late 2000’s, cameras became available as part of an interlock unit, but at first, they were rather expensive add-ons. As technology advanced, though, they got cheaper, and eventually just became a standard component of every interlock unit. Now, you can’t get a BAIID without a camera – and that’s a good thing, because it can help out in at least some skipped rolling retest situations.

Let’s use another hypothetical to explain this point: Imagine that Sober Sam gets his vehicle started in the morning with a clean (0.00) BAC reading. He drives to work, and as he pulls into the parking lot, he notices a few cars parked askew, and a police car there, as well. He can’t get into his usual spot, and he looks around, he sees that his co-worker, Tim, is outside talking to the police officer.

Concerned, Sam gets out of his vehicle, but leaves it running. As he goes to find out what’s happening, he sees that Tim’s car has been hit by someone, and Tim is expressing concern about having it towed, because his wife is out of town and he has to pick up his kids from school that day. Sam gets caught up in this conversation, offering a few ideas of his own, including getting an Uber for Tim (Sam had used Uber quite a bit before he won his driver’s license appeal a few months before) so he can get his kids and get them home.

When Sam gets back into his vehicle about 15 minutes later, he learns, to his dismay, that he missed a rolling retest.

Sam is going to get a skipped rolling retest violation. No matter what he does, at this point, he won’t be able to escape having his license revoked again. He’ll have to request a hearing, and then win it in order to get his driving privileges back.

Fortunately, when he re-enters his vehicle, Sam is able provide a breath sample (albeit late), and the results come back, as expected, at 0.00.

The Secretary of State makes very clear, within every order granting driving restricted privileges, in a separate section called “Notice of Proper Ignition Interlock Use” that if a person misses a test, he or she should PROMPTLY go to a police station and get a PBT test, or at least find a lab and get an EtG urine test before the day’s end.

Let’s assume that Sam doesn’t do that, for whatever reason. Although he should have gotten an independent test, at least when he appears for his skipped rolling retest violation hearing, he can point to the subsequent test he took on his BAIID showing that he hadn’t consumed alcohol. The accompanying picture will leave no doubt that he provided the breath sample, and that will be helpful.

Now, one might think, “Okay, so that’s that, and all is good.”

Not quite.

Although his subsequent test showed that Sam wasn’t drinking, and even if he had taken a PBT at a local police station, as well, none of that completely excuses his violation for a skipped rolling retest.

Remember, he’s being violated for missing a required retest. Of course, the idea behind those tests is to ensure one was not drinking, but it’s the part about skipping the test that is the actual violation.

Here’s another hypothetical to help explain this one:

Imagine you get a job as a lifeguard at a hotel pool. The boss informs you that the pool opens at 9:00 a.m., and that you have to be in your big chair by then. One day, the boss learns that you didn’t get in until 9:15. In your defense, you show him video footage of the pool area proving that nobody even came into it until after 10:00 a.m.

The boss replies that your job is to be in the lifeguard chair at 9:00 a.m. It’s all well and fine that nobody was even in the pool area until after 10:00a.m., but the issue is that you failed to do what was required, which was to be in the lifeguard chair by 9 sharp.

In that same way, Sam is going to have to answer for his skipped rolling retest. The good news is that, when we have evidence like a timely subsequent PBT or EtG test, or even just a relatively prompt sample provided on the interlock device itself, we can push through a skipped rolling retest violation and save our client’s license. The hearing officer’s have a job to do, but they are reasonable people.

That said, there are some hearing officers who suffer from “violation fatigue” a lot more than others. This means that if someone keeps screwing up, even when it’s clear he or she hasn’t been drinking, some will think, “this person just can’t follow the rules” and leave the license revoked for just that reason.

Don’t be that person….

Without a doubt, the worst skipped rolling retest situation occurs when a person just skips a test and then never provides any kind of timely sample within a reasonable time thereafter. Here’s what I mean (and, yes, it’s another example):

Imagine that Tipsy Tom is driving home from work, but then misses a rolling retest and keeps driving for another 20 minutes. When he arrives home, Tom just cuts off the engine and leaves the vehicle. At no time did he get a PBT or EtG test, nor did he ever even blow again into his interlock unit until the next morning.

At any hearing for his slipped rolling retest violation, Tom will be asked to explain why he didn’t provide some kind of proof he hadn’t been drinking. And it’s right there he’ll run head first into the presumption that, by not testing, he was hiding the fact that he had been drinking. For all the hearing officer knows, Tom could have had a half pint stashed in his car, or stopped off somewhere and quickly run in to buy some beverage alcohol to start drinking before he got home.

Maybe that’s not what actually happened, but one thing is sure: The actions of our other hypothetical character, Sober Sam, are VERY different from those of Tipsy Tom following his skipped rolling retest violation, and Sam at least has proof that he wasn’t drinking, unlike Tom.

As genuine Michigan driver’s license restoration lawyers, my team and I know how to best navigate these situations. Even in a case like Tipsy Tom’s, we’d assemble all possible evidence to save his license. Perhaps Tom lives with someone who could write a letter about that day and indicate that he did not have any alcohol on his breath when he came home, nor did he otherwise act in any way inconsistent with being sober.

It is an absolute certainty that the only way to win a skipped rolling retest violation (or any violation, for that matter) is to fight and present a winning case.

Here’s where things get more complicated: On top of everything else, a violation hearing will always be seen by the Secretary of State as an opportunity to make sure that the original decision to grant the license was correct. This means a person will be asked about the dates of his or her last use of alcohol and any other substances from the prior hearing. No matter how good a person’s defense to the skipped rolling retest violation may be, he or she also need to be thoroughly prepared as if he or she is going in for the original license hearing.

Preparing for these questions is every bit as important as presenting a defense to the underlying violation.

The next most important thing is getting off the interlock as soon as possible in order to avoid any more of these potential problems.

If you are facing a skipped rolling retest violation, or any other kind of ignition interlock violation and looking for a lawyer, be a savvy consumer and read around. Pay close attention to how different lawyers explain the license appeal and violation process, and how they describe their various approaches to it.

This blog is a great place to start. It is fully searchable and update weekly with a new article. To-date, I have written and published over 690 articles in the driver’s license restoration section. This includes plenty about every aspect of interlock violation matters. It is simply the best resource anywhere, but don’t just take my word for it – check for yourself.

Once you’ve done enough reading, start calling around. You can learn a lot by talking to a live person, and that’s exactly what you’ll get when you call our office. All of our consultations are free, confidential, and done over the phone, right when you call.

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