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Open Letter to Our Clients Regarding Michigan State Police Breath Test Fraud

Jan 15th, 2020 OWI Open Letter to Our Clients Regarding Michigan State Police Breath Test Fraud

Many of our clients have asked us what the calibration fraud that was recently uncovered in the Michigan State Police breath test program impacts their cases.  Our clients also want to know their options moving forward. The purpose of this article is to answer both of these questions.  However, before doing so, it’s helpful to place this issue into a proper context.

Here are some basic facts about the Michigan State Police breath test program, and about breath testing more generally. Knowing this information will help you better understand our answer to your questions.  First, the Michigan State Police are charged with the responsibility of the selection of the instrument for breath test measure, and they are also responsible for maintaining the equipment.  Proper maintenance of the equipment is necessary in order to assure the integrity of the reported breath test result.

Michigan’s Breath Test Instrument – the DataMaster DMT

More than a decade ago, the Michigan State Police (MSP) decided to replace all the breath testing instruments that were in use throughout the State.  This led to the 2011 purchase of 300 DataMaster DMT breath test instruments.  Of these 300, 203 are currently in use.  This purchase contract was between the State of Michigan and National Patent Analytic Systems (NPAS), a Mansfield Ohio corporation.  NPAS was at the time owned and operated by its CEO, Mr. John Fusco.  This purchase contract included maintenance of the DMTs by NPAS.

Sale of the DMT to Intoximeter

In 2013 John Fusco sold the rights to the DataMaster DMT to one of his company’s competitors, Intoximeters, Inc., and retired.  This sale is significant to the current fraud issues for several different reasons.  After the sale, Intoximeters, Inc., took over the maintenance contract, and as part of this transition, several of the inspectors were replaced.  The inspectors who are being investigated for fraud are those who were contracting with Intoximeters, Inc.  Also, the DMT was not designed or built by Intoximeters, Inc. and it is possible that the problems arose from a lack of corporate expertise at Intoximeters, Inc.

Leadership Changes in the MSP Breath Test Program

Leadership changes at MSP have also occurred recently. One of the individuals involved in the decision to purchase the DataMaster DMT, and who thereafter lead the MSP breath test program was Sgt. Perry Curtis.  Sgt. Curtis retired in 2017, and since this time, has been replaced by Mr. Mark Fondren.  Unlike Sgt. Curtis, Mr. Fondren is a toxicologist with a background in infrared spectroscopy, which is the science used by the DMT to measure breath alcohol.  It is under Mr. Fondren’s “watch” that this fraud was uncovered.  It’s not currently clear how extensive this fraud is or how far back it goes.

What Does the Law Require for Maintenance of the MSP Breath Test Instruments?

For purposes of this article, suffice to say that there are two aspects to the maintenance of the MSP breath test instruments.  These include the weekly calibration checks and the 120-day inspections.  The weekly calibration checks are performed automatically by the DMT once each calendar week. These weekly calibration checks involve the DMT drawing off a portion of a dry gas solution from a cylinder containing a .08 standard.  The 120-day inspects are more involved, and require a “Class IV” operator to manually prepare three wet-bath solutions, place these solutions into a simulator, and then manually expire breath through the solution and into the DMT.  This is a second calibration check, this time at .04, .08 and .20.  If the Class IV operator determines that the factory calibration or the prior calibration of the subject DMT has drifted, then they have the knowledge, training, and ability to change the calibration of the instrument being inspected.

What Does an Inspector from Intoximeter Do?

These inspectors are the Class IV operators described in the above paragraph.  In addition to checking the calibration at three different points, they also check to assure that the DMT being inspected can properly detect RFI (radio frequency interference) and acetone contamination.  As indicated, this function must be performed at least once during each 120 day period.  Because the wet bath solutions are manually prepared by the 120-day inspector, and because the DMT does not record and store the calibration results obtained by the 120-day inspector, there is ample opportunity for accuracy problems to occur due to the malfeasance of any 120-day inspector.

What Kind of Calibration Fraud Did the MSP Police Admit to?

This is not 100% clear just yet.  It appears that at least 2 of the 120-day inspectors contracted through Intoximeters, Inc., committed fraud either by claiming that they performed their 120-day inspections on a particular date and time when the inspection was actually performed on a different day, perhaps outside the 120-day requirement, or failed to perform the inspection at all. It is also possible that the committed fraud by claiming to have properly mixed their wet bath standards or any other aspect of their inspection when in fact they did not.  While we don’t yet know the exact nature or extent of the fraud, we do know that as of the date of this article, the MSP has not admitted that any of the 203 DMTs currently in use were improperly calibrated.  This does not mean that calibration errors didn’t occur, only that calibration errors have not been disclosed or discovered.  We are all currently waiting for the MSP to complete their investigation, and then trusting that they will be completely transparent and forthright about whatever they uncover.

Are My Breath Test Results Wrong?

Maybe, it’s hard to say with certainty, but it’s safest to assume that the answer is possibly yes. What does seem clear is that there was rampant fraud throughout the MSP breath testing program.  The full extent of the fraud remains to be shown.  What is also unquestionable is that the integrity of the entire breath test program has been compromised.  MSP has admitted to fraud by the very individuals who are charged with the responsibility of maintaining the equipment.  These are serious allegations with potentially very serious consequences, not just to the individuals involved, but to the entire criminal justice system in the State of Michigan.

What Does This Mean for My Case?

Each case is different, and you will need to discuss your case with the lawyer representing you.  If your case is still pending and no plea has been entered, then your attorney may be asking the court for more time to investigate the specific breath test instrument used in your case, and for more time while MSP completes their investigation.  Alternatively, you may wish to set your case for trial, and then let the jury decide if the fraud uncovered effects the breath test results in your case.  If you’ve already been convicted, either by a jury or by a plea of guilty, then you may wish to consider asking a judge to set the plea or verdict aside. It will be important for you to discuss these options specifically with your lawyer.

What Comes Next?

Presumably the MSP will continue to keep the public informed as their investigation moves forward.  In the meantime, they’ve decided that the issues are significant enough to take all 203 DMT breath testing instruments out of service.  Until their investigation is complete, all people arrested for drunk driving in Michigan will be asked to provide a blood sample for testing.  If they refuse, they will be charged with an implied consent refusal, and risk potentially great driver license sanctions.

Please direct all further questions to the Barone Defense Firm lawyer handling your case, or contact Patrick Barone directly.  We will continue to keep our clients informed as we learn more.