Attorneys: Breathalyzer inaccuracies extra widespread than let on | Native Information

Attorneys: Breathalyzer inaccuracies more widespread than let on | Local News

TRAVERSE CITY — Documents show Michigan State Police officials knew about potential problems with breathalyzer results months before disclosing the problem publicly.

Meanwhile, they let hundreds of Michiganders faced prosecutions that depended upon those breath tests.

Attorneys Frederick Stig-Nielsen and Jesse Williams, who for months have been taking up drunken driving cases to delve further into the issue, now accuse MSP of covering up further questions of accuracy.

Accusations of technician misconduct first came to light in a January review of Datamaster results. MSP investigators found two technicians, one covering Grand Traverse, Antrim and several other counties, had copy-and-pasted old records and skipped calibrating devices, according to a release.

The now-fired subcontractors were tasked with that Datamaster maintenance, consisting of following strict protocol, resolving device troubleshooting and conducting set reviews of the machines every 120 days. The techs and Datamasters were supplied by Intoximeters, Inc. — a now-former MSP service contractor — and provide calibrated breath test results used in most drunken driving prosecutions statewide.

Those techs, David John and Andrew Clark, each face multiple felony charges in federal court.

Each Datamaster breathalyzer — there is one in nearly every local jail in Michigan — was collected and recalibrated following the discovery, MSP Director Col. Joseph Gasper said in a January statement.

The investigation led to the dismissal of 52 drunk driving cases in Michigan, each of them in areas identified by MSP as impacted by the scheme.

Stig-Nielsen suspects the quick response and MSP takeover of further Datamaster maintenance was an effort to close the book quickly.

“That’s the crux of it, isn’t it?” Stig-Nielsen said. “Whenever we have any governmental organization uncovering some kind of untoward behavior, isn’t it always just an effort to appease the people quickly without really doing an in-depth investigation?”

MSP in January identified issues in devices used by the Alpena County Sheriff’s Department, Beverly Hills Police Department, Detroit Detention Center, Montcalm County Sheriff’s Department, Niles Police Department, Pittsfield Township Police Department, Tecumseh Police Department and Van Buren County Sheriff’s Department. Multiple local judges and prosecutors have brushed off questions of Datamaster accuracy outside of those areas.

MSP Public Affairs Section Manager Shanon Banner said that early list only referred to specific, “known incidents” of “suspected falsification of records,” and referred questions on other incidents to a Jan. 15 press release and timeline, which notes other ongoing issues with the Intoximeters contract.

She declined further comment.

Several Michigan defense attorneys, Stig-Nielsen included, opted to probe deeper.

Communications provided by Stig-Nielsen and revealed through discovery in a recent downstate drunken driving case show text messages between high-ranking officials in MSP’s Breath Alcohol Program discussed password problems.

An early May 2019 exchange shows Clark, the fired technician, express concern to MSP Sgt. Gina Gettel about the subject.

“Would it be a bad thing if someone was giving out the passwords and having the departments return (their) units back to service due to interference?” he asks.

Yes, Gettel responds. She probes for more information, spurring Clark to launch into a lengthy message.

“I love this job and don’t like being a rat and don’t want to lose my job over this. I didn’t go looking for this,” Clark said. “Boy, my numbers would look great if I was doing this.”

About 20 minutes after that, Gettel replies: “It’s been addressed.”

An investigation report penned by Gettel and entered in court records highlights violations of procedure by Intoximeters. Datamasters repeatedly passed maintenance deadlines, and Intoximeters — at multiple points — sent John and Clark to jobs before they’d been properly cleared by MSP.

Gettel also references an instance in April 2019 when a jail sergeant alerted her to password-sharing issues.

“I immediately emailed (Intoximeters official) Mr. Dunsworth and advised him this practice needed to cease and the password shall not be given out,” Gettel wrote.

The communication raises questions about the breadth of technicians’ habit of providing passwords and allowing jail staff to conduct maintenance to avoid in-person fix-it calls.

The documents also show, as testimony from Breath Alcohol Technical Leader Mark Fondren confirmed, those at the top of the program were aware of the practices.

Fondren identified three time periods in which individuals other than John or Clark improperly restored Datamasters to service after a malfunction, according to September testimony.

Fondren’s testimony spurred the Grand Traverse County Prosecuting Attorney’s Office to launch its own investigation into drunken driving cases its attorneys handled during that period.

Grand Traverse County Prosecutor Noelle Moeggenberg said a preliminary look had identified dozens of local cases for review — her estimate was about 50. The number of those with legitimate challenges is likely much smaller, she added.

The whittled down list will be investigated case-by-case, Moeggenberg said. She and her staff will pen letters to all defense attorneys with an affected case. Reviews will exclude any cases with high BACs, she said, and those with other strong evidence.

“We’ll still be notifying defense attorneys on those, but I’m not concerned that someone was wrongfully convicted in a case like that,” Moeggenberg said.

She anticipates the review will run the next several weeks.

Traverse City Police Chief Jeff O’Brien and Grand Traverse County Sheriff Tom Bensley both said they were aware of the probe, but neither anticipated further involvement on their ends.

Moeggenberg’s office worked with jail officials to gather information on when MSP officials and technicians visited Grand Traverse County’s jail. Even if they’re able to identify who among jail staff were involved, charges won’t be coming.

“Everything that was done was done in good faith, at the direction of the contract individuals,” Moeggenberg said.

Further steps will come in hand with defense attorneys. Once attorneys receive notice, they can file a motion to withdraw their plea, Moeggenberg said. None of Grand Traverse’s questioned cases reached jury trials, she added.

Moeggenberg declined to discuss any concerns of similar conduct in other, non-listed regions.

“I guess I would just hope that every county is going through it carefully,” she said. “Ours were gone through with a fine-toothed comb, and I’m glad we found what we did.”

A pair of ongoing Antrim County cases has Antrim Prosecutor Jim Rossiter taking a more discerning look on his own. Rossiter is waiting on MSP communications named in a discovery request, but he has not reexamined any past cases at this point, nor has he been asked to.

Rossiter wants to be sure that every part of the case is done in a “proper fashion.”

“Whether you’d call it an investigation, I don’t know. But you look and say ‘OK, something funny’s there,’” Rossiter said.