Michigan State Police finds flaw in breath alcohol testing, suspends contract

In a development that could impact drunken driving cases across Michigan, state police officials are alerting law enforcement agencies about problems with breath alcohol testing devices used by many police departments, according to a letter obtained by The Detroit News.

Maj. Greg Zarotney of the Michigan State Police Office of Professional Development wrote in the Jan. 10 letter, which is written to police and prosecutors statewide: “This letter is to inform you that a stop order on the current vendor’s contract was issued January 7, 2020, due to performance-related issues.” The letter did not identify the problems or how they were uncovered.

The issues involve the Datamaster DMT breathalyzer device. A phone call to the vendor, Intoximeters Inc. of St. Louis, Missouri, was not returned Saturday.

State police Lt. Michael Shaw told The News on Saturday that “we noticed some issues with the vendor that was responsible for maintenance and auditing the DataMasters around the state. We immediately issued a stop order on the contract and will be (setting) up a unit in order to assume the responsibilities of that vendor. 

“We also sent a letter yesterday to all prosecutors, police chiefs and sheriffs in the state,” Shaw said. “We are currently reviewing any irregularities, and will notify any prosecutors that may be affected. This was just discovered, and we will be working to determine what occurred with the vendor.”

Authorities will keep using the devices, but Michigan State Police, not the vendor, will calibrate them, according to Shaw.

Oakland University criminal justice professor Daniel Kennedy said any errors could have a major impact on drunken driving cases in Michigan.

“This could open the floodgates for appeals,” Kennedy said. “In drunk driving cases, one of the first questions any defense attorney asks is, ‘when was the last time the device was calibrated?’ So, if they found problems with how these things were being calibrated, that could wind up being one big mess.”

Zarotney wrote in the letter: “Prosecutors with cases impacted by the contractor errors identified by MSP have already been notified. However, out of an abundance of caution, we are examining all available data to determine if any additional tests are impacted by the contractor errors. If any additional errors are found, a report will be immediately forwarded to the affected prosecutor.”

Zarotney added state police also will take over the contractor’s duties of certifying and servicing the units.

In 2018, Intoximeters signed a 3-year, $1.2 million contract to maintain, calibrate and repair the 215 Datamaster DMT units owned by state police. The contract, which expires Aug. 31, 2021, requires the company to certify each unit every 120 days.

Wayne County Prosecutor Kym Worthy received the letter Saturday. 

“We will of course perform our due diligence,” she said. “It’s premature to comment further at this point.”

Oakland County Sheriff’s Capt. Christopher Wundrach said Saturday that the office had not yet received the letter but “it should not be a big deal, the majority of the time, we do blood draws.”

Taylor police chief John Blair also said he didn't get the letter and hadn’t heard of any problems with the Datamaster, which his department uses.

“Most police departments in Michigan use the same equipment,” Blair said. “I don’t know what this means for us, but I’m going to look into it immediately.”

East Lansing attorney Michael J. Nichols, who specializes in drunken driving cases, said he obtained a copy of Zarotney’s letter Saturday morning and was stunned.

“I don’t know quite what to make of this,” he said. “Depending on exactly what the errors were and how pervasive they were, I think this could have a huge potential impact.

“Already today, I’ve made contact with two of my clients and two prosecutors, telling that what we now know. Their cases are set for Monday, and I’m going to be asking for adjournments from each judge until we get to the bottom of what’s going on."

According to the state police website: "The DMT DataMaster breath alcohol test instrument was chosen in Michigan based upon a careful evaluation of all instruments available … the operating principle of the instrument is based on infrared absorption. Infrared technology as applied to breath alcohol testing had its origin in the early 1980s. The DMT DataMaster evolved through the years to its present state-of-the-art instrument with expanding computer capabilities."

"DataMasters are located at most sheriff departments around the state, and some local departments have purchased their own," the state website said. "The DMT DataMaster is the test instrument used for evidential breath alcohol tests."

Nichols said the DataMaster is only part of the evaluation of sobriety.

"The instrument can be generally accepted for purposes of getting an estimate for alcohol in a person’s system, but we can never rely on it standing on its own as proof of how much alcohol is in someone’s system," he said.

"I'm a little suspicious about why they sent out this letter. The state is being transparent, and they never do that unless there’s more to it."