On January 13th, 2020, the Michigan State Police took its 203 Datamaster breathalyzer machines out of service due to fraudulent records submitted during maintenance. The state police have a $1.26 million per year contract with Intoximeters, a St. Louis-based company, to perform 120-day maintenance, calibration and certification of all machines. At least two employees of this company are suspected to have allowed machines to remain in use that failed testing. Some machines were even certified without being examined. This has called into question a great number of drunk driving convictions based on these suspect results. Some pending OWI charges have already been dismissed based on concerns of the Datamaster accuracies.
The Michigan State Police identified fabricated test results for a breathalyzer at the Alpena County Sheriff's Department on January 2nd, 2020. On January 13th, 2020, additional fabricated test results were found in connection with breathalyzer machines at Beverly Hills, Pittsfield Township and Tecumseh police departments. With further investigation, the state police found discrepancies with eight instruments between 2018 and 2020. Upon taking the Datamaster machines out of services, state police directed law enforcement agencies to use blood draws instead of breathalyzer results to ascertain BAC levels.
On January 16th, 2020, Col. Joseph Gasper, the head of the Michigan State Police, testified before a committee in the Michigan Senate to several stunned lawmakers about this serious problem. He testified that a criminal investigation was opened on January 6th, 2020 regarding possible forgery of a public document and is ongoing. State employees have been conducting audits of the Datamasters, he reported, and at least 37 have been placed back into service thus far. The other breathalyzer machines should be audited and returned to service within the next month. A new Breath Alcohol Technical Leader position was created within the Forensic Science Division to "bring the state's evidentiary breath alcohol testing program into alignment with forensic lab standards and work toward national accreditation."
During the period that the Datamaster breathalyzers are on hiatus, Michigan drivers should be aware of the following:
- Police Officers Will Trade Breath Test For Blood Draws: If law enforcement suspects that you have been drinking and driving, you can be requested to take a chemical test of your blood or urine in lieu of a breath test. Many drivers pulled over for OWI or OWVI can expect to be pricked by more needles in the meantime.
- Fraud Probe Does Not Allow Drivers To Refuse Chemical Testing Without Consequences: The current Datamaster investigation does not give drivers a basis to refuse chemical testing. The police officer can direct the driver to take a blood or urine test instead. Under Michigan's implied consent law, a driver who refuses chemical testing upon request of a police officer can have their operator's license suspended for one year (or two years if this is a second or subsequent refusal within a seven year period). This suspension applies even if the driver is ultimately not charged or convicted of a DUI offense.
- Chemical Testing Not Absolutely Required To Be Charged With A Crime: Although public confidence in DUI prosecutions may be affected by the Datamaster probe, remember that chemical testing is not required to charge you with a crime. The prosecutor can charge someone with operating while visibly impaired (OWVI) if he or she can prove beyond a reasonable doubt that the person operated a vehicle on a public road, had consumed alcohol or a controlled substance, and was visibly impaired. The prosecutor does not have to prove that the person was legally intoxicated (blood alcohol content of 0.08) to sustain a conviction.
If you were recently charged or convicted with a DUI offense on the basis of a Datamaster chemical test result, you should consult with a skilled criminal defense attorney to see how your situation is affected. For the best assistance with any legal issue, do not hesitate to contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC today.