Court Finds Civil Rights Possibly Violated by MSP Employees Involved in State’s DUI Breath Testing Program

The Michigan Eastern District Court has partially ruled in favor of a Michigan resident, finding that he does have a civil rights cause of action against the Michigan State Police (MSP) for recklessly allowing breath test evidence from faulty instruments to be used in prosecuting him. Other possible civil rights violations relating the MSP breath test program were also found. The lawsuit against Intoximeter, the corporation that services the breath test instrument used by the MSP, was however dismissed.

This case arose out of an ongoing fraud investigation in the MSP DUI breath test program the began with the discovery by a defense attorney  of some questionable 120-day inspection reports relative to his client’s DataMaster DMT breath test result. The DataMaster DMT (DMT) is an infrared evidential breath alcohol test instrument used in the prosecution of drunk driving cases throughout the State.  According to Michigan law and administrative rules each DMT instrument is to be inspected by a “class four” certified technician every 120 days. These 120-day inspections are intended to ensure that the instruments are correctly calibrated and are in good working order.

These 120-day inspections are in addition to weekly self-checks the device conducts automatically using a dry-gas simulator solution. Certain error codes can be generated during these tests that may cause the instrument to be taken out of service. If that happens the instruments can only be brought back into service after further inspection by a class four operator. Around the time of the discovery of the questionable records, the Michigan State Police (“MSP”) had begun to uncover their own cadre of suspect records.

All of this occurred in the backdrop of the sale of the DataMaster DMT to Intoximeter. Prior to the sale, Sergeant Curtis oversaw the MSP Breath Alcohol Program. He was also involved in the evaluation of the “new” DataMaster DMT for use in the State of Michigan. On September 1, 2018, the State of Michigan entered a three-year contract with Intoximeters that included regular maintenance and certification of the DataMaster DMTs (“Service Contract”). Prior to this time MSP has a service contract with National Patent Analytic Services, the corporation that originally developed and sold the DataMaster DMT.

According to the lawsuit, Defendant Sergeant Gettel was responsible for oversight of the of the Service Contract. This Service Contract also required Intoximeter to hire at least 3 certified DMT service technicians, each of whom was subject to MSP approval. The job of the new technicians was to handle the day-to-day operations of the Service Contract, includening the required 120-day inspections. Intoximeters was also required to provide and train MSP officers and staff relative to the DataMaster DMT.

Concomitant to all of this, in January 2019, the MSP decided to make attempts to “bring Michigan’s evidentiary breath alcohol testing program into alignment with forensic laboratory standards and work toward national accreditation.” To head this effort, the MSP created a new position with the title Breath Alcohol Technical leader and hired Mark Fondren in this capacity.

Under Mark Fondren’s direction, in April 2019, the MSP implemented additional oversight of the Intoximeter Service Contract, ostensibly to ensure that service technicians hired by Intoximeter discharged their duties in full compliance with State Law and administrative rules. This was also a necessary step before the desired accreditation of the breath test program could be achieved. This additional oversight was also necessary to allow the MSP to detect problems with the DataMaster DMTs. These problems included improper maintenance and/or 120-day certification.  No audit of Intoximeter’s work was commissioned at this time.

A few months later, on August 9, 2019, MSP sent Intoximeters a letter identifying substantial “performance issues” related to their Service Contract, including those related to timely certification of DataMaster instruments and failure to comply with basic security protocols.  Additional issues included sixty instances of failing to perform certifications, incorrectly recording important elements during instrument checks, and sharing instrument passwords with jail staff.

As MSP’s review of the previously performed 120-day inspection reports and ancillary records continued throughout the rest of 2019 and January 2020, the MSP uncovered additional and repeated instances of unlawful conduct on the part of the Intoximeter service representatives related to the maintenance and certification of DataMaster DMTs throughout the State. Specifically, the MSP identified at least seven law enforcement locations where the service technicians failed to properly complete necessary documentation on work alleged performed on the DataMaster DMT. The Intoximeter service technicians also failed to properly identify malfunctions with DataMaster DMTs, and/or failed to properly fix malfunctions when they were identified. This included improper instrument certification.

The entire investigation came to a head, and became public, on January 7, 2020, after the MSP discovered more false paperwork related to a DataMaster DMT at the Alpena County Sheriff’s Department. In response the MSP issued a stop work order with Intoximeters and notified the press what was happening. In this statement the MSP indicated, among other things, that it was investigating potential fraud committed by Intoximeter employees. Two service technicians hired by Intoximeters, David John and Andrew Clark, were both fired and charged criminally for Fraud. John specifically was accused of sharing his private vendor number with jail staff and having others perform the 120-day inspections in his place. He then falsifying reports, so it looked like he performed the tests, or completely fabricating them when the deadline for same was missed. He did this in part by copying and pasting previous results onto new inspection reports.

On January 13, 2020 the MSP sent the Lenawee County Prosecuting Attorney a letter notifying of them of the results of their investigation and identifying twelve OWI cases specifically affected by the fraud that occurred in the maintenance and calibration of the DMT instrument located at the Tecumseh Police Department. According to the MSP, due to the fraud occurring between February 15, 2019 – June 28, 2019 the tests for those twelve OWI cases were unreliable.

Much of the above allegations are from the reported case of Miller v. Gettel, 2021 U.S. Dist. LEXIS 240942, 2021 WL 5989018. In this case the Plaintiff Kerry Miller alleges that Defendants violated his due process rights in multiple ways. Miller, who was one of the 12 OWI defendants identified in the January 13, 2020 letter, specifically alleged that his civil rights were violated when the MSP fabricated evidence relating to the calibration, re-calibration, accuracy, and/or certification of DataMaster DMT. Further, that the evidence produced by the DataMaster DMT was used to initiate criminal prosecution against him. Additionally, by failing to disclose this exculpatory evidence during the pendency of his OWI. Also, by presenting this falsified evidence to Michigan courts and using it to obtain a guilty plea agreement from him, and finally in failing to train, supervise, oversee and/or discipline individuals assigned to coordinate alcohol testing and recalibrate DataMaster DMTs. Fondren, Gettel and Intoximeter were all named as defendants in the suite.

Fondren and Gettel filed a motion to dismiss claiming qualified immunity. They also asserted that Miller’s allegations did not constitute a substantive due process violation because they were not “conscience-shocking” and swift corrective action was taken as soon as other’s misconduct was detected. Also, that Miller was precluded from claiming that he was deprived of procedural due process because “Michigan courts already have adequate procedural safeguards in place,” and finally the MSP Defendants lacked knowledge of any danger to Miller, and they did not increase any danger to him by failing to stop the misconduct of others.

Intoximeters filed their own motion to dismiss arguing (1) it is not subject to liability under 42 U.S.C. § 1983 because Intoximeters is not a state actor, (2) it is not subject to negligence liability it did not owe Miller a duty of care, and (3) that Miller had failed to adequately plead negligent or intentional fraud.

Michigan District Court for the Eastern District found that the MSP defendant’s Fondren and Gettel where not entitled to qualified immunity in part because granting same before discovery is usually impermissible.  Additionally, the Court found that Miller had pleaded at least some errors by the MSP Defendants that contributed to his alleged constitutional violations, specifically that Miller had sufficiently pleaded three of his four alleged Fourteenth Amendment violations.

The Court found that “viewing the facts in the light most favorable to Miller he has plausibly alleged the MSP Defendants knowingly or recklessly allowed local authorities to continue charging, prosecuting, and convicting Michiganders of OWI using faulty instruments that could have produced false evidence—and did in Miller’s case.” Accordingly, the Court concluded that Miller sufficiently alleged a fabrication of evidence claim under the Fourteenth Amendment.

The Court also found that Miller “plausibly pleaded a suppression of evidence claim under the Fourteenth Amendment” because “the MSP Defendants were aware of general deficiencies with the DataMaster DMTs at least as early as April 2019, but did not share that knowledge with local authorities, allowing Miller’s prosecution to continue uninterrupted until he eventually entered a guilty plea and was sentenced.

Finally, as it relates to Fondren and Gettel, the Court found that Miller had sufficiently alleged a failure to intervene claim because “Gettel and Fondren had both reason to know constitutional harm would be taking place and had the opportunity and means to prevent the harm from occurring. The failed February 15, 2019 inspection of the subject DMT occurred before Miller was arrested, and widespread problems with the machines were discovered before he pleaded guilty and was sentenced. Defendants Gettel and Fondren, as leaders of the Breath Alcohol Program, could have informed the Tecumseh Police Department and/or the Lenawee County Prosecutor prior to January 2020 that the subject machine had failed its inspection, and thus was inaccurate and unreliable. They did not, and Miller was prosecuted based on false evidence.

The motion of Intoximeter was granted because, according to the Court, Miller had failed to establish that Intoximeter was a “State actor” and had failed to establish that Intoximeter owned Miller a duty of care. Accordingly, Intoximeter was dismissed from the lawsuit.

When asked about the Court’s rule, Jon Marko, the attorney for Plaintiff Kerry Miller, responded “the Michigan state polices failure to protect the citizens of Michigan is appalling and should scare everyone of us. The integrity and reliability of the court system is a cornerstone of our democracy and freedom. In this case, the polices failure to ensure the accuracy of its breathalyzers led to false evidence being entered into a court of law against countless Michiganders and broke the system. The damage caused by this malfeasance may never truly be known.”

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