Breathalyzer devices: Wait-and-see approach must be taken, defense attorney says

Published: Jan. 13, 2020 at 4:18 PM EST
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(01/13/2020) - Michigan State Police launching a criminal investigation into a contractor hired decades ago to maintain and calibrate blood alcohol testing machines statewide.

A contract with Intoximeters has been stopped and all 203 Datamaster DMT machines in use at Michigan police agencies have been removed from service until they can be evaluated, according to Michigan State Police Director Col. Joe Gasper.

Certified MSP officials are taking over maintenance and calibration of alcohol breath testing machines effective immediately. Local police agencies are asked to rely on blood tests to determine a suspect's blood alcohol level.

The actions all relate to "performance based issues" with the devices used at law enforcement agencies throughout Michigan, state police say. Michigan State Police own, maintain and calibrate all alcohol breath test machines in the state.

Officials haven't said whether the situation will affect drunk driving cases pending in the court system. Gasper said discrepancies have been found with the work performed by two of three employees at Intoximeters, who both were hired in 2018.

Michigan State Police officials discovered possible discrepancies with Intoximeters' records in August 2019 and requested a corrective action plan, which the company provided later that month.

More issues popped up with Intoximeters' work soon after and state police officials have been working with the company to fix them ever since.

Possible discrepancies involve eight Datamaster machines, but officials are working to determine whether more are affected.

Criminal defense attorney Mike Manley said it's important to take a wait-and-see approach because the performance-related issues with the devices are not specifically addressed.

"Is this a contractual dispute? Is this something with the machine that goes to the veracity of the machine, the reliability of the machine? Is it something big, is it something small?" Manley said.

There are a lot of unknowns. This could potentially boil down to two different scenarios, according to Manley.

"State police turns over to all the county prosecutors a reliability issue. The county prosecutors all get together or make decisions that we convicted people on evidence that was not reliable and they voluntarily dismiss cases," he said.

Manley said if it's a matter of an argument over whether or not it's reliable, judges could decide to allow the tests in court and defense attorneys can attack their credibility. Jurors would make the decision on that case.

But that could allow for inconsistent verdicts across the state.

"Because the Datamaster is so important to our driving under the influence cases, we're going to take them on a case-by-case basis, because really no one knows exactly what the manufacturer's issue is," said Genesee County Sheriff Chris Swanson.

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