Michigan Breath Test Fraud Results in Multiple Felony Charges and Multiple Dismissals of Drunk Driving Cases

Michigan’s Attorney General Dana Nessel recently announced that two technicians, formerly responsible for the maintenance and calibration of hundreds of breath testing devices used throughout Michigan, have been charged with multiple felony counts for allegedly falsifying records.  Their names are Andrew Clark and David John.

Mr. Clark and Mr. John were both “Class IV” operators of the DMT. Class IV is the highest of the four operator classes, and this level of certification allows the operator to perform 120-day inspections. During the 120-inspection the operator checks for linearity and if problems arise, it is possible for the inspector to re-calibrate the DMT. If done improperly, this could result in inaccurate breath test results, wrongful DUI arrests and wrongful DUI convictions. The criminal cases against them allege that Mr. Clark and Mr. John committed forgery in producing false documents indicating, among other things, that they had performed 120-day inspections when none had occurred.

The breath test device used to test drivers arrested for DUI in Michigan is called the DataMaster DMT. Michigan currently has more than 200 DMTs in service, and all of them are serviced by 3 technicians. The State was essentially divided in half north to south, creating an Eastern and Western side each of which was handled by a separate technician.  The northern part of the State, including the upper peninsula, was handled by a third operator.

Andrew Clark was responsible for handling the DMTs on the East part of the State. This means that for drivers arrested for DUI in places like Bloomfield Hills, Plymouth, Rochester, Troy and Clarkston, Andrew Clark would have been responsible for maintain the equipment used to test your breath. David John was responsible for handling DMTs on the west side of the State, so for DUI arrests occurring in Kent County and the Greater Grand Rapids area, Mr. John would be responsible for assuring breath test accuracy for these cases.

As one of only three 120-day inspectors, both men were responsible for traveling to about 100 different police departments once every four months so that they could inspect the DMTs in use there and if necessary, perform calibrations and repairs. They worked for Intoximeters, but were contracted through the Michigan State Police.  The MSP was therefore responsible for their oversight.  They began working in this capacity in September 2018. So, it took more than 18 months to discover the fraud. On information and belief, it wasn’t until a DUI defense attorney obtained a 120-day inspection report and noted a discrepancy. Eventually, this information was brought to MSP who then began their own investigation.

According to the criminal complaint, the two men committed forgery in producing documents that claimed to show that they properly and timely completed 120-day inspections and repairs on two DMTs, one located in Beverly Hills and the other in Alpena County. However, on information and belief, the fraud is far more widespread, and covers any and all 120-day inspections performed by these two men between September 2018 and January 2020.

For more information please see the following articles:

  1. Open Letter to Our Clients Regarding Michigan State Police Breath Test Fraud.
  2. Michigan State Police Admit Fraud in Breath Test Certification.
  3. Breath Test Results Not Admissible in Many Kent County DUI Cases!
  4. Historical Facts Related to Michigan State Police Breath Test Program 120-Day Inspection Fraud.
  5. What is a Michigan DUI Breath Test 120-Day Inspection and Why Should I Care?

Therefore, if you were arrested for DUI in Michigan between the relevant time period, your lawyer may be able to have the breath test results thrown out. The Michigan DUI lawyers at the Barone Defense Firm have been successful in using this information to win cases.  Contact us today for your free no obligation case review.

 

 

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