A non-memory test is a Datamaster DMT test performed by a non-certified operator for purposes other than to provide a certified result in an OWI case pursuant to Iowa Code § 321J.2. As an aside, clients and potential clients identify the two breath tests in use in Iowa—the preliminary breath test (PBT) and the Datamaster DMT—as “breathalyzer” tests because they both ask for breath samples. Technically, these two tests are not breathalyzers. But the name, like Kleenex for all tissue, has stuck.
The Datamaster DMT produces a “non-memory” test result when officers use an abbreviated DMT procedure to seek a breath sample that will not be used for evidentiary purposes. Sometimes officers ask public intoxication defendants or those who are being released from the jail after an OWI to provide a bodily sample for this reason. Note that a public intoxication defendant will not lose his or her license for refusing to consent to a Datamaster DMT if he or she was not operating a motor vehicle.
Jail inmates who are suspected of previous intoxication might be asked to provide a non-memory sample to be released. This is for liability and public policy reasons, not to collect evidence against the defendant. For example, in the Linn County Jail in Cedar Rapids, Iowa, standard operating procedure is to release an OWI defendant no fewer than five hours after booking in with a non-memory test of .05 grams of ethanol per 210 L breath.
Operators need not be certified to operate the Datamaster DMT for a non-memory DMT test. However, it may be important to seek a list of all non-certified personnel who have operated the machine to determine if reasonable doubt exists as to uninformed abuse of the machine.
For example, are non-certified operators turning the machine on or off if it “freezes,” as it is a computerized device? How is data integrity affected by such protocol breaches? Are they following procedures to prevent the discharge of excess static electricity when they operate the machine?
While DMT proponents claim that the machine can self-diagnose any errors, allowing non-certified operators to mess with the machine begs an important question? How is it being used and/or abused? Technology is fallible because it is a human creation. Well meaning law enforcement officers without training to use the DMT might foul it up. Of course, these are questions defendants and their attorneys can only ask of potential defense experts and expert witnesses who have a specialized skill set and knowledge base to speak to such issues. No lawyer can be an “expert” on these subjects in court. It requires actual expert testimony. A defendant may or may not wish to pursue these theories during pretrial motions or, later, if it comes to that, a jury trial.
If you or a loved one has been arrested for OWI, public intoxication, or other alcohol or drug related offense in Cedar Rapids or other Iowa community, contact DAC-LAW PLC for a free initial consultation today.
Not a Datamaster DMT-- often all breath test machines are called "breathalyzers" like all tissue is called Kleenex. It's a name that has stuck simply because the machines request a breath sample. In Iowa, the Datamaster DMT and certified operators may obtain evidentiary breath samples