Timeline: Errors That Led to MSP's Breathalyzer Investigation

MICHIGAN — As Michigan State Police do a deep dive into possible fraud from the contracted employees of the vendor that provides breathalyzer tests in the state, more information is showing how these errors have impacted specific OWI cases in the state.

Michigan State Police Director Col. Joe Gasper gave testimony Thursday morning before the state’s Judiciary and Public Safety Committee on the findings to-date of the investigation into issues with the state’s Datamaster DMT evidential breath alcohol testing instruments.

New information released by officials shows breathalyzer technicians committed grave errors like giving instrument passwords to jail staff and not servicing instruments, rendering their evidence unreliable.

Discrepancies were identified involving eight instruments. Here is a breakdown of how that impacted departments across the state:

State police said Friday that as each of the irregularities are identified, prosecutors will conduct reviews on a case-by-case basis to determine what actions to take next.

TIMELINE OF EVENTS

State police released a timeline Friday that documents the exact breakdown of service and OWI cases across the state.

Here's a look at how the fraud case has unfolded:

Sept. 1, 2018 – Effective date of three-year maintenance contract with Intoximeters Inc.

• Contract is $1.26 million; requires vendor’s three technicians to conduct 120-day certifications of all instruments, perform service calls and routine maintenance, and provide court testimony on the service and maintenance of the instruments.
• The technicians whose work is in question were hired in September and November of 2018.

Jan. 2019 – With the intent to bring the state’s evidentiary breath alcohol testing program into alignment with forensic laboratory standards and work toward national accreditation, the MSP created a new position, Breath Alcohol Technical Leader, within the Forensic Science Division. The accreditation process was expected to take at least 18 months.
April 2019 – MSP put additional workflow requirements in place with the vendor to ensure compliance with state law and administrative rules and move toward accreditation. It was after these additional controls were put in place that the MSP began to notice noncompliance by the vendor’s technicians.
Aug. 9, 2019 – After identifying repeated failures by the technicians to meet contractual requirements and the inability to perform the mandated tasks of maintaining and certifying the Datamaster instruments, the MSP asked DTMB Central Procurement to issue a letter to Intoximeters outlining grounds for breach of contract and requesting a corrective action plan.

• Examples of improper actions include:
  • Not performing timely 120-day certifications in 60 instances.
  • Incorrect recording of important elements during instrument checks; these include dry gas lot numbers and expiration dates, which can create issues in court when the lot numbers recorded by the technicians are wrong, or do not exist.
  • Sharing instrument passwords with jail staff.

Aug. 21, 2019 – MSP received a corrective action plan from Intoximeters that outlined their action plan to correct the contractual failures.
Aug. 23, 2019 – An Intoximeters technician committed a serious error that resulted in the dismissal of an OWI case in Montcalm County.

• On August 23, 2019, the technician went to the Montcalm County Jail and signed the Datamaster Maintenance Log. The technician did not notify the MSP nor Intoximeters of this visit and did not submit any paperwork regarding the reason for his visit. Later that day, an MSP sergeant arrested an individual for OWI and utilized that instrument for evidential testing. MSP was first made aware of this technician’s August 23rd visit by the Montcalm County Prosecutor’s Office on Nov. 15, 2019. The technician and Intoximeters were both unable to explain this visit, casting doubt on the reliability of any tests conducted on Aug. 23-26, 2019 when an accuracy check was performed by the technician. This lack of documentation resulted in the dismissal of this OWI case.

Oct. 10, 2019 – Another serious error occurred that resulted in the dismissal of evidence in six cases in Wayne County.

• On this date, a technician arrived at the Detroit Detention Center to perform a 120-day certification. The instrument failed testing, but the technician did not notice the failure. Consequently, he left the instrument in service until Oct. 13, 2019. During this 3-day period, the instrument was used for six OWI evidential breath tests. Because the instrument was not properly serviced and was left in service, these six cases did not have reliable breath evidence. The MSP sent a notice to the Wayne County Prosecutor’s Office, which decided to dismiss the evidence in these cases.
• Following discovery of this error, MSP requested removal of the technician responsible, with removal and replacement to occur no later than January 15, 2020. This never occurred due to the MSP actions taken on Jan. 7 to issue the stop work order.

Dec. 2019 – MSP began the process of establishing a unit within the Forensic Science Division to oversee the state’s breath alcohol testing program. The unit will be comprised of three equipment technician positions to maintain and certify the state’s breath alcohol testing equipment.
Jan. 2, 2020 - During a routine audit of documents submitted by the vendor for the prior two-week period, an irregularity is noticed on an instrument at the Alpena County Sheriff’s Department. The MSP immediately requested the original documents from the technician.
Jan. 6, 2020 – MSP confirmed the irregularity was the result of the technician fabricating the paperwork for a required test that was not performed on the instrument.

• A criminal investigation is opened by the MSP into possible forgery of a public document. This investigation is ongoing.

Jan. 7, 2020 – With potential criminal acts committed by an Intoximeters technician, the MSP issues a stop work order with the vendor and secures all equipment and paperwork from the three technicians.
Jan. 10, 2020 – MSP finalizes an emergency plan to immediately bring all maintenance responsibilities for the state’s 203 instruments in-house, and notification is made to police and prosecutors of the stop work order and MSP’s new responsibilities.
Jan. 13, 2020 – MSP personnel continued through the weekend to review records from the technicians yielding additional discrepancies involving a second technician and three more impacted instruments (Beverly Hills PD, Pittsfield Township PD, and Tecumseh PD), in which it is suspected that instrument calibration tests were again fabricated.

• With this new information, MSP removes all 203 Datamaster DMT evidential breath alcohol testing instruments from service until they can be inspected and verified by MSP personnel to ensure they are properly calibrated.
• MSP recommends to police agencies that they utilize blood draws rather than breath tests to establish evidence of drunk driving during the interim period.

MOVING FORWARD WITH BREATHALYZERS

The state's 203 Datamaster DMT evidential breath alcohol testing instruments were taken out of use Jan. 13, 2020 as they were inspected and verified. As of Friday, MSP officials said that 37 of 203 instruments have been returned to service following the verification process.

They plan to re-calibrate and return all instruments to service by the end of February. The criminal investigation into the fraud committed by the contract employees of the Datamaster vendor continues.