Breathalyzer flaw delays court cases, concerns arise

Michigan

GRAND RAPIDS, Mich. (WOOD) — We’re starting to see the first real impacts of the fallout from the breathalyzer fraud controversy in the state of Michigan, and many are concerned about what this could mean for old cases in court.

The Michigan State Police said Monday that blood alcohol content results from suspected drunken drivers can’t be trusted and machines have been pulled across the state.

State police said Intoximeters, the company who produces and maintains the machines, may have fraudulently filled out maintenance documents, which means the machines that are supposed to precisely measure the amount of alcohol in someone’s system may be off, resulting in inaccurate results. MSP has cut off their contract with vendor Intoximeters Jan. 7.

Officers have been told to use blood and urine to test blood alcohol content levels until it is confirmed that all the machines are properly calibrated.

A local defense attorney that News 8 spoke to estimates thousands of cases across the state will be affected by this potential fraud.

“What do I tell my clients? Because this is huge,” defense attorney Ed Sterninisha said he thought when he first learned about the test results being potentially tainted. 

On Tuesday morning, Sterninisha went before a Kent County judge and requested a 30-day extension for his client who is currently charged with operation while intoxicated. 

“(The) judge granted it and now I’m looking into that particular case,” he said.

Attorneys across the state of Michigan are now filing FOIA requests to learn more information about this potential fumble.

“What I’m trying to do is find out what the Michigan State Police are finding out,” Sterninisha said. “We really can’t rely on the testimony of the person who did it anymore if in fact they are found to be fraudulent.”

“My big concern is what about those who already pled guilty based on that?” Sterninisha said. “How are we — what are we going to do? Even if we overturn a conviction, we can’t get back time that they served.”

On Tuesday evening, state police announced that the instruments at the Kent County Correctional Facility were properly calibrated after certified MSP personnel inspected and verified them. The Datamaster instruments are back in service.

There is still a lot to learn about the situation. MSP says the problem was discovered at the beginning of this month and now investigators are working to uncover how long it’s been happening.

“It’s not a fast process. It’s going to take a long time,” Sterninisha said. 

He tells News 8 the next step could be lawsuits against the breathalyzer company. We’ve tried to reach them for comment over the past two days but have not heard back.

CHANGES TO OWI INVESTIGATIONS 

If you get behind the wheel after drinking and are pulled over before instruments are verified, your BAC will still be tested. 

Despite the Datamaster DMT instruments being out of service, the temporary new procedure is for suspected drunken drivers to be taken to the hospital or jail for a blood or urine test. 

Sheriff Mike Williams with the Montcalm County Sheriff’s Office says that will slow down the process.

“It may take an extra hour or two, take police officers and deputies off the road for a little bit more, but we will still continue OWI investigations and insure successful prosecution,” he said.

Those cases will take a lot longer to work through the legal system. Unlike the breath test that has almost instant results, blood and urine samples have to be sent to the state lab, which takes time and money to generate results. The average wait time is two weeks, but this new dilemma will likely cause longer wait times since the state labs are already backed up.

“We are still trying to figure out how this is going to impact current cases as well as future cases,” Williams said. 

The Michigan State Police purchase and maintain the Datamasters for departments across the state. It is still in the process of reviewing vendor records to see how many cases are impacted and during what time frame. But, eight departments throughout the state have been identified with having possible discrepancies in results.

“It’s a bump in the road, just like any other thing,” Williams said. “We try to do the best we can with the circumstances that we’re given.”

Copyright 2020 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Know something newsworthy? Report It!