In a series of public communications, the Michigan State Police have admitted that many of the more than 200 DataMaster DMT breath test machines used in the state were fraudulently certified. The full extent of the fraud as well as it’s meaning and impact to those arrested and prosecuted for allegedly driving drunk remains to be revealed. In the meantime, the integrity of the breath test results for all drunk driving cases throughout the State is being called into question. Accordingly, the Michigan State Police (MSP) has ordered that all breath test DMT instruments throughout the State be taken out service immediately. While the investigation into the extent of the criminal activity is investigated, all suspected drunk drivers will have their blood withdrawn for testing. This blood can be withdrawn with the consent of the driver, or by a warrant, if the driver refuses to give blood.
Here is a chronological record of how MSP and their breath test program ended up in this tenuous situation:
- On September 1st, 2011, Michigan entered contract # 071B1300379 with National Patent Analytic Systems (NPAS) for the purchase of 300 DataMaster DMT breath test instruments. This contract, which amounted to over Three Million Dollars, included a three-year period of maintenance to be performed by NPAS employees.
- On March 14, 2013, one of NPAS’s competitors, Intoximeters, announced that they were purchasing NPAS. Subsequently, Intoximeters took over the maintenance contract.
- During the time period within which the DataMaster DMT was being evaluated for use in Michigan, the MSP breath testing program was overseen and led by Sgt. Perry Curtis. Sgt. Curtis retired from this position in 2018, and in 2019 the MSP hired Mr. Mark Fondren to act in his stead but with a new title, Technical Leader of the MSP Breath Testing Program. Fondren is a toxicologist with decades of experience and his primary objective is to bring accreditation to the MSP breath testing program.
- As part of Fondren’s efforts to achieve such accreditation, he began an audit of the 120-day inspections of Michigan’s DMTs. For a DMT to be used by the police, it must undergo weekly calibration checks and every 120 days, a technician from the manufacturer would come in to “certify” that the machine was in proper working order. It appears that at least two of the three technicians that work throughout the State of Michigan were engaged in some sort of undisclosed fraud when undertaking the duties necessary to properly complete a 120-day inspection. Consequently, the breath testing machines have now been decertified.
To understand the significance of all this, it’s helpful to know what happens during the 120-day inspection. A 120-day technician will first prepare and test three alcohol solutions at a .04, .08 and .20 alcohol level. If the DMT being inspected fails to properly measure these standard solutions, the technician has the training, experience and ability to recalibrate the breath test instrument. In theory, a malicious technician could “train” the DMT to measure a .04 sample as a .08. If this has occurred in Michigan, someone driving lawfully with a .04 breath alcohol level could end up with a .08 breath test result. This could result in a wrongful conviction. Fraud at this level has not been disclosed by the MSP, but this hypothetical shows just how dire the current situation is for the State Police as well as for drivers in the State of Michigan.
While this is all being sorted out, defense attorneys and their clients are trying to make sense of the breath test evidence they’ve been provided to determine if the breath test evidence should be challenged. Judges are also charged with the responsibility of figuring out what to do with these cases as they manage their dockets. More information is being released on an almost hourly basis, and the situation is rapidly changing.
If you have been arrested in Michigan for drunk driving and took a breath test, it’s in your best interest to hire an OWI lawyer who can help you decide how to proceed. If the breath test device used in your case was affected by the fraudulent calibration practices of the Michigan State Police’s breath test program and Intoximeters, relief may be available. Call now to learn more.