Man sues MSP alleging they knowingly used defective breathalyzer, resulting in his wrongful conviction

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Posted at 7:29 AM, Jan 28, 2021

(WXYZ) — "He was treated like a criminal and he was treated worse because he was innocent and no one would listen," said Attorney Jon Marko, referring to his client Kerry Miller.

RELATED: Michigan State Police launches criminal investigation after possible flawed breathalyzer test results

Miller is a Marine veteran who was parked at a McDonald's in Tecumseh when police suspected him of driving drunk. Officers used a Datamaster DMT, which is a breathalyzer that indicated Miller was a .13, which is well over the legal limit. However, the machine that is supposed to be as accurate as a blood draw was wrong.

"He was branded as a liar and someone with an alcohol problem because he drank two beers," Marko said of his client. "So this has devastated his life (and) affected the ability of him being able to live his normal life."

Miller is now suing several officials with Michigan State Police and Intoximeters – the company the state hired to maintain the breathalyzer. Early last year, the machines were pulled out of service when technicians for Intoximeters were accused of fraud and failing to properly maintain the machines.

"We have false evidence being entered in a court of law," Attorney Jon Marko said.

He points to a letter from 2019, which is the year his client was arrested. It's from state officials to Intoximeters addressing maintenance problems with the breathalyzer that were aggravating Michigan State Police, telling the company to get its act together.

State MI Dept Tech, Mgmt an... by WXYZ-TV Channel 7 Detroit

"They were told to fix the problem in 2019 and as far as we can tell they didn't do anything about it," Marko said. "If you have inaccurate breathalyzers, you're going to have inaccurate results which is going to lead to people being falsely convicted of crimes they never committed."

Intoximeters Inc is located in Missouri and 7 Action News has reached out to them for comment, but they have yet to respond.

A spokesperson for Michigan State Police declined to comment.

Complaint & Jury Demand Filed 1-26-21 by WXYZ-TV Channel 7 Detroit on Scribd