Michigan State Police uncover 'potential fraud' with breath alcohol testing

Michigan State Police suspended a contract with the vendor that services its breath alcohol testing instruments after the company was found falsifying records and misrepresenting when the devices were calibrated, state police officials said Monday.

State police director Col. Joseph Gasper said in a statement his department also has launched a criminal investigation into the alleged fraud by the St. Louis, Missouri vendor, Intoximeters, Inc.

"Based on new information learned over the weekend, the Michigan State Police ... is aggressively investigating potential fraud committed by contract employees of Datamaster vendor, Intoximeters, and also moving today to take all 203 Datamaster DMT evidential breath alcohol testing instruments out of service until MSP can inspect and verify each instrument to ensure it is properly calibrated," Gasper said.

"In the interim period, the MSP recommends that police agencies utilize blood draws rather than breath tests to establish evidence of drunk driving."

Phone calls and emails to Intoximeters from The Detroit News on Monday were not returned. 

State police began alerting law enforcement agencies about problems with breath alcohol testing devices in a letter last week.

In the wake of the suspension, police, prosecutors and defense attorneys across Michigan are trying to grasp the scope of the issue, with many police departments expected to switch from breath tests to giving blood or urine tests until all the instruments are properly calibrated by state police, which is taking over the duties.

Authorities originally said Saturday they would keep using the devices, but Michigan State Police, not the vendor, would calibrate them.

Gasper said the vendor, Intoximeters, employs three contract employees who were responsible for servicing all 203 Datamaster DMT instruments in the state.

"It is records from these service sessions that are in question," Gasper said. "Review of vendor records in the last two days has yielded additional discrepancies that may point to the potential for a more widespread issue with the way in which some instruments were being serviced.

"While the discrepancies do not directly impact or deal with the results of evidential breath tests, it is concerning that it appears as though some certification records have been falsified. As a result, the MSP has opened a criminal investigation that is looking into possible forgery of public documents."

The state police in 2018 signed a 3-year, $1.2 million contract with St. Louis, Missouri-based Intoximeters to maintain, calibrate and repair the Datamaster DMT breathalyzer units owned by state police, and used by many sheriffs offices and police departments statewide.

Under the contract, the units are supposed to be calibrated and certified every 120 days.

Robert Stevenson, director of the Michigan Association of Chiefs of Police, said he expects police departments to temporarily suspend giving breath tests to suspected drunken drivers.

"I think the biggest thing will be the inconvenience factor," said Stevenson, formerly Livonia's police chief. "Police won't be doing breath tests for the time being; they'll be doing urine and blood draws instead.

"That could be inconvenient, having to take someone to the hospital (for a blood or urine test), but in the long run, it'll be offset by state police doing the calibrations, to make sure they're accurate. I give MSP credit for taking that work on, and making sure it's done properly."

Defense attorneys said the news could have a major impact on drunken driving cases.

"We’re going to start filing motions; there could be many appeals," Metro Detroit defense attorney William Maze said. "I had a client call me earlier asking if she could appeal a conviction. I don't know if that will happen, but in terms of pending cases, it'll have an impact."

In a motion filed in Oakland County Circuit Court in June, Maze alleged there was fraud involved with certifying the Datamaster devices.

"The only actual accuracy check performed on the machine nowadays is the 120 accuracy checks," Maze wrote in a motion to suppress the Datamaster in a case involving a Dec. 16 drunken driving arrest by a Michigan State Trooper.

"In this case, it is claimed that a 120 accuracy check was performed on August 22, 2018, by (an Intoximeters employee)," Maze wrote. "(The employee) did not use the standardized stamp to reflect a test on August 22, 2018. (He) simply wrote, “120 DAY CERT,” on the logs with six apparent breath test results next to it."

"... In Ionia County and Wayne County, (the employee) has been discovered to avoid using the standardized stamp and has been accused of falsifying dates and testing scores."

Oakland County Prosecutor Jessica Cooper wrote in a July 18 response to Maze's motion: "Technical violation of the administrative rules with regard to the 120-day check is harmless because (the) defendant has failed to show the results of the instrument were inaccurate."

The case was eventually dismissed on other grounds, Maze said.

Detroit defense attorney Lillian Diallo on Monday said: "This could be a hydra — cut off one head, and more heads pop up."

Diallo said she might ask to appeal convictions, but she said she doesn't have enough information to determine that yet.

"The problem is, we don't know how far back this goes. We need more data to know how many cases are affected," she said.

Not all police departments in Michigan are affected by the news. Novi police chief David Malloy and Macomb County Sheriff Anthony Wickersham both confirmed to The Detroit News it doesn't impact their operations after speaking with state police officials.

Maria Miller, spokeswoman for the Wayne County Prosecutor's Office, said the potential effect of the news is not yet known.

"It’s too soon to assess the overall impact this recently received information will have," Miller said.

Dearborn police chief Ronald Haddad echoed Miller's statement. "We got the letter from the state police a couple days ago, but it's too early to tell how this will affect us," he said.