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Fraudulent Breath Tests Lead to As Many as 4000 Wrongful Drunk Driving Convictions

Sep 2nd, 2016 Breath Testing Uncategorized

The lynchpin of Michigan drunk driving prosecution is a reliable breath testing program.  Prosecutors have big problems when this reliability is legitimately called into question.

This is exactly what has happened recently in Texas where it is reported that between 1200 and 4000 breath tests were fraudulently verified.

According to the Houston Chronicle a Department of Public Safety contractor by the name of Deetrice Wallace fraudulently manipulated the state’s breath testing machines causing thousands of wrongful DUI convictions.  Instead of changing the reference sample every month as required Wallace instead falsified the tests and pocketed $146,000 in profit.

Something similar happened not long ago in the state of Washington where the state police faced fraudulent breath testing on an even larger scale.  The breath test scandal in that state caused Barry Logan, director of the Washington State Patrol Forensic Laboratory Services Bureau, to resign.  According to the Seattle Times:

Logan’s resignation comes just two weeks after a panel of King County judges ruled that the state toxicology lab — one of the two labs overseen by Logan — engaged in “fraudulent and scientifically unacceptable” practices while preparing and analyzing breath tests used to prosecute suspected drunken drivers. The judges called for the suppression of the tests and laid much of the blame on Logan, finding he bore “a good deal of the responsibility for [the lab’s] shortcomings.”

Michigan has not suffered from a similar debacle, but Michigan’s breath testing program is certainly not immune from such problems.

Michigan’s breath testing administrative rules in part read as follows:

Rule 3. (1) An evidential breath alcohol test instrument shall be verified for accuracy at least once at any time during each calendar week, or more frequently as the department may require, by an appropriate class operator pursuant to R 325.2658(4). The tests need not be performed within 7 days of each other, but shall be performed less than 14 days apart.  The test for accuracy shall be made in a prescribed manner using an alcohol standard that is approved by the department.  For the instrument to meet the requirements for accuracy, a test result of .076 to .084 shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor.

Typically Class II operators of the various police departments, jails and other law enforcement agencies prepare and run the weekly simulator tests.  These are simply police officers who have only a single 6 hour day of training with at least a 70% on the written test. There is no proficiency testing and no oversight regarding this aspect of Michigan’s breath testing quality assurance program.

A Class IV operator will run the 120-day inspections. In neither case is there a state agency charged with oversight.

If fraud is every to be uncovered it will be due to the efforts of the criminal defense bar. Without oversight thorough discovery and exhaustive cross-examination is the only hope a falsely accused driver has to vindicate his wrongful drunk driving charge.

If you’ve been arrested in Michigan for drugged driving, call the Barone Defense Firm today for your FREE case review.