MSP investigating ‘potential fraud’ by breathalyzer vendor

Michigan

LANSING, Mich. (WOOD) — Michigan State Police says workers at the vendor that maintained its breathalyzer machines may have committed fraud, and it’s telling officers to use blood draws to determine drunken driving until it has confirmed all the machines are properly calibrated.

In a letter (PDF) to prosecutors last week, state police said they had already cut off their contract with vendor Intoximeters Jan. 7 because of “performance-related issues.”

MSP said Monday afternoon it is still digging into records and has so far found possible discrepancies in cases out of several law enforcement agencies, including the Montcalm County Sheriff’s Office, Niles Police Department and Van Buren County Sheriff’s Office.

Other affected police agencies include:

  • Alpena County Sheriff’s Department
  • Beverly Hills Police Department
  • Detroit Detention Center
  • Pittsfield Township Police Department
  • Tecumseh Police Department

The state has already reached out to prosecutors handling the affected cases. When a discrepancy is found, MSP said, results can be verified by testing and inspection.

MSP says at least two of Intoximeters’ three contracted workers, both of whom were hired in 2018, may have committed fraud. The agency is questioning whether some service and certification records were falsified — though it’s not yet clear exactly how many.

It is investigating possible forgery of public documents. It promised to pursue charges if it confirms evidence of a crime and try to recoup any costs to the state.

The revelation by state police that they’re investigating potential fraud related to breathalyzer certification is already impacting drunk driving cases in West Michigan. 

A Grand Rapids attorney whose client was scheduled to plead guilty Tuesday said he will ask the judge for a delay. 

“In good conscience, (given) my ethical duty to (my client), I can’t let him (plead guilty),” Ed Sternisha, a lawyer who specializes in drunk driving cases, said. “I called him … and said, ‘hey, I think we need to ask the judge to put the case on hold until we can find out what’s going on. Maybe your breath test was wrong.’ In this case, if we take the breath test out of the equation, there’s not enough for a conviction. I watched the (police) video, he didn’t appear intoxicated. Was he or wasn’t he? I don’t know because I don’t know if that breathalyzer was properly inspected.” 

The client in the case allegedly blew a .16, two times the legal limit of .08.

Defense attorney Jason Barrix wondered when the alleged fraud may have begun.

“How many people went to trial, plead guilty and this issue wasn’t disclosed, and somebody may have been convicted wrongfully?” Barrix asked.

“Especially on a close case where someone’s a .08, or .07. The (breathalyzer) number’s what the government relies on the most. In fact, often times that number will determine what plea agreement you might get, if any. So, if the number’s too high, the prosecutor takes the stance, ‘this is too high, we’re not going to make any offers on this case.,’ and now we don’t know if the number is valid, if it’s accurate. We don’t know how many people plead guilty to a number that wasn’t valid and they may not have been guilty of anything at all.”

Barrix said a drunk driving conviction can devastate a person’s life.

“They lose careers, they lose CDL licenses, they lose a lot of money — they are incarcerated,” Barrix said.

MSP said it doesn’t know how long the problems have been happening. It first reached out to Intoximeters in August 2019 about concerns and soon got a plan back for corrective action. Issues then came back up.

MSP is taking all of the 203 affected machines — Datamaster DMTs — out of service for now.

“Upon learning of additional and more egregious discrepancies, I am no longer comfortable having police agencies using these instruments until we can be confident they are certified, calibrated and serviced according to state law and industry standard,” MSP Director Col. Joseph Gasper said in a Monday statement.

MSP stressed that the Datamaster DMT is a reliable machine when properly maintained.

Intoximeters, based in St. Louis, has been maintaining Michigan breathalyzer machines for some 20 years. It did not respond to News 8’s requests for comment Monday.

A breathalyzer is not the same as a portable breath test, which a driver suspected of drunken driving might take alongside the road. Breathalyzer tests are taken once a suspect is at jail.

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