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Breathalyzer errors could go as far back as a year

Posted at 4:11 PM, Jan 16, 2020
and last updated 2020-01-16 16:11:34-05

LANSING, Mich. — A series of errors, forged paperwork, and failed tests by technicians in charge of maintaining breathalyzers for Michigan State Police have led to a deeper investigation, and in some situations, even causing criminal cases to be dismissed.

Michigan State Police Director Joe Casper testified before the state's Judiciary and Public Safety Committee on the department’s investigation into issues with DataMaster DMT breath alcohol testing devices.

According to the MSP, findings so far have shown there are problems with eight breathalyzers at locations throughout Michigan -- none of those locations are in the Lansing area.

The irregular breath tests were found at Alpena County Sheriff's department, Beverly Hills Police Department, Detroit Detention Center, Montcalm County Sheriff's Department, Niles Law Enforcement Center, Pittsfield Township Police Department, Tecumseh Police Department, Van Buren County Sheriff's Department.

A total of 52 breath tests were found to have discrepancies, according to findings by the MSP.

MSP said that as irregular tests are discovered notifications will be made to the affected prosecutor regarding impacted breath tests. MSP said that it's at the prosecutor’s discretion to determine what actions to take as effected cases are reviewed.

On Monday, Jan. 13, MSP removed all 203 Datamaster DMT breathalyzers from service. Thirty-seven of those devices have been returned to service after being properly calibrated.

A fraud investigation into the company that supplies the state’s breathalyzer devices is still ongoing. The investigation comes after evidence indicated the company falsified records and misrepresented the devices’ accuracy.

Timeline of events

In September, 2018, MSP entered a three-year maintenance contract with St. Louis-based Intoximeters Inc., the suppliers. The contract required the vendor's three technicians to conduct 120-day test of all instruments, perform service calls and routine maintenance, and provide court testimony on the service and maintenance of the instruments.

According to MSP, the technicians whose work is in question were hired between September and November of that year.

The contract cost $1.26 million.

In January, 2019, the state began a process to move towards national accreditation of their evidentiary breath alcohol testing program, to do so MSP added additional workflow requirements with Intoximeters Inc. to ensure they were meeting that standard and state laws.

By April, the MSP began to be concerned by the Intoximeters Inc.'s technicians due to repeated failure to meet requirements.

MSP said that improper actions were failure to perform timely 120-day certifications in 60 instances, incorrectly recording important numbers during instruments checks, and sharing instrument passwords with jail staff.

MSP said that incorrectly recording important numbers during breathalyzer checks such as dry gas lot numbers and expiration dates can create issues in court when the numbers recorded by the technicians are wrong, or flat out do not exist.

In August, 2019, MSP made DTMB Central Procurement aware of the issues and asked them to submit a letter to Intoximeters Inc. outlining the breach of contract and request a correction action plan.

MSP did receive an action plan from Intoximeters that same month. Two days after receiving the approved action plan complying with MSP, an Intoximeters technician committed a serious error that resulted in an OWI case in Montcalm County being dismissed.

In October another serious occurred that resulted in evidence for six cases in Wayne County being dismissed.

By December, MSP took action to establish a unit within their Forensic Science Division to oversee the state's breath alcohol testing program. The unit was comprised of the three technicians whose job it was to maintain and certify the breath alcohol testing equipment.

On January 2, 2020, Alpena County Sheriff's Department noticed an irregularity on an instrument during a routine audit of documents submitted by Intoximeters Inc.

MSP said that they immediately requested the original documents from the technician.

On January 6, 2020, MSP confirmed the irregularity was the result of the technician fabricating the paperwork for a required test that was not actually performed on the device. At that time MSP opened a criminal investigation into possible forgery of a public document.

Within the following days MSP began to take action. They filed a stop work order with Intoximeters Inc. and secured all equipment and paperwork from the technicians that were under investigation.

MSP finalized an emergency action plan to recall all 203 breathalyzers and notify police and prosecutors of the situation.

As MSP began digging into records from the technicians they noticed more discrepancies that involved three more impacted instruments, leading MSP to suspect that the paperwork for the calibration tests was fabricated.

Serious errors

According to MSP, several instances of serious errors that resulted in cases being dismissed occurred in August, 2019, and October of 2019.

On August 23, 2019, a technician went to the Montcalm County Jail and signed the Datamaster Maintenance Log.

MSP said the technician did not notify anyone of the visit and did not submit any paperwork regarding the reason for his visit. Why is this an issue? Later that day, an MSP sergeant arrested an individual for OWI and utilized that instrument for evidential testing unaware of the technician’s visit or why.

MSP was made aware of the technician’s August 23 visit by the Montcalm County Prosecutor’s Office on November 15, 2019. When asked, the technician and company representatives were both unable to explain the visit, which MSP said cast doubt on the reliability of any tests conducted on August 23 through August 26, 2019, when an accuracy check was performed by the technician. Because of the lack of documentation by the technician the OWI case was dismissed.

MSP said that on October 10, 2019, another serious error occurred that caused six cases to be dismissed.

MSP said that a breathalyzer at the Detroit Detention Center failed testing, but the technician didn’t notice the failure and left the compromised breathalyzer in service until October 13, 2019. During those three days the instrument was used for six OWI breath tests.

MSP said that because the instrument failed its testing but was left in service, the six cases did not have reliable breath evidence. The MSP sent a notice to the Wayne County Prosecutor’s Office, which decided to dismiss the evidence in these cases.

According to MSP, after this event MSP requested removal of the technician responsible and to be replaced by January 15, 2020, but because of the evidence that was discovered in early January MSP had larger concerns than replacing the technician.

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