On Jan. 13, 2020, the Michigan State Police (MSP) issued a “Statement on Temporarily Suspending Use of Datamaster DMT in Wake of Criminal Investigation into Contractor Malfeasance.” MSP’s statement asserted that:
“On Jan. 10, 2020, the MSP alerted prosecutors and police departments statewide that it had issued a stop order on the current vendor’s contract due to performance-related issues. The vendor, Intoximeters, employs three contract employees who were responsible for servicing all 203 Datamaster DMT instruments in the state, and it is records from these service sessions that are in question. Effective Jan. 10, 2020, fully certified MSP personnel have taken over responsibility for ensuring all Datamaster DMTs are certified, calibrated and serviced according to state law and industry standard.
“At this early stage in the investigation, the MSP does not know how many certification records were falsified or how long these deceptive practices were occurring.”
Attorney Jesse L. Williams was interviewed about the implication of the alleged DataMaster fraud by Traverse City’s 9&10 News. It reported on Jan. 13, 2020, that:
“Defense Attorney Jesse Williams says the information gathered from these machines is often a key part of drunk driving cases.
“‘The DataMaster is used to convict thousands of people, and jurors and judges really rely on it as the gospel. I mean if that word’s whispered and it’s the right number, more than likely you’re going to get convicted. So it’s a very important piece of evidence,’ said Williams.
“‘A drunk driving conviction can literally devastate someone. It can literally tear down everything they’ve built up so far in life. People lose jobs, they lose homes, they lose lots of things over drunk driving convictions, and this is very serious so they need to very seriously come forth with this information,’ said Williams.
“Williams says the biggest question that needs an answer right now is just what issues specifically were found with these machines.
“‘If there are people who are sitting in jury trial today and get convicted unlawfully or got convicted yesterday or a week ago or a month ago or are pending trial, then just come out and explain what happened. Let’s fix the problem,’ said Williams.”
On Jan. 14, 2020, the Detroit Free Press published an article entitled: “Michigan State Police suspects fraud in Breathalyzer tests, opens criminal investigation,” and it reported that:
“MSP suspects fraud by contract employees of Datamaster vendor Intoximeters, according to a statement by Director Col. Joseph Gasper. It appears as though some certification records have been falsified, Gasper said in the statement. The possible forgery of public documents is what prompted the criminal investigation. However, during this early stage of the investigation, officials don’t know how many certification records were falsified or when the deceptive practices started.”
Michigan’s Senate’s Judiciary and Public Safety Committee received testimony on Jan. 16, 2020, from MSP Colonel Joe Gasper regarding the DataMaster fraud investigation. The Sinclair Broadcast Group reported that Col. Gasper testified that MSP “discovered irregularities in the Breathalyzer testing devices, known as Datamasters, that appeared to be a result of a technician “fabricating the paperwork for a required test that was not performed on the instrument.”
Attorney Michael J. Nichols also testified during the hearing and his written statement that was provided to the committee indicated:
“The rules further require [a DataMaster] inspection every 120 days by a manufacturer-trained representative or other certified appropriate-level breath test operator. … The 120-day checks are critical. … The 120-day checks offer the human component to a degree that is controlled. This test is temperature-dependent – which is a great reason why any misconduct in conducting this test is a significant moment for our justice system. The 120-day checks also are meant to verify the calibration of the instrument over a larger range of different ethanol concentrations and test important interference detections of the instrument.”
Michigan Attorney General Dana Nessel issued a press release on May 22, 2020, indicating that her office had “filed charges against two technicians contracted to service all the DataMaster DMT breath alcohol testing instruments for the Lower Peninsula. … Specifically, it is alleged that two of Intoximeters Inc.’s three technicians – Andrew Clark and David John – created fictitious documents to show they completed certain diagnostic tests and repairs on two DataMaster instruments for which they had responsibility for calibration and performance….”
In its Sept. 20, 2020, article, entitled “Testimony raises questions about breath tests used in DUI convictions,” the Traverse City Record Eagle reported that:
“Prosecutors will reexamine dozens of convictions they fear hinged on inaccurate breath tests after testimony during a local teen’s drunken driving case.
“Michigan State Police Breath Alcohol Technical Leader Mark Fondren testified […] that MSP officials not only knew about maintenance problems with breath test machines located in jails months before they were made public in January 2020 – but also that at least three un-investigated stretches of questionable maintenance occurred in Grand Traverse County within the past two years, despite a previous MSP denial that local counties were impacted.
“The discovery is a valuable one to attorneys Frederick Stig-Nielsen and Jesse Williams, who’ve offered pro bono services to several defendants charged during those gaps. The attorneys have long suspected problems existed in local maintenance records for machines that provide official breath test results used in drunken driving prosecutions.
“It’s also a win for their client – [who] was offered a plea deal by prosecutors shortly after the hearing, which drops his charge down to minor-in-possession and careless driving, both civil infractions.
“Accusations of statewide technician misconduct came to light after an early 2020 MSP review of Datamaster breathalyzer device test reports.
“The lack of any previous MSP release of those local details is unacceptable, Williams said. ‘Drunk driving convictions affect people for the rest of their lives,’ Williams said. ‘They’re nonexpungeable offenses, they’re life offenses. You can’t get rid of them.’
“‘A DUI conviction never comes off your record – it haunts you forever,’ Stig-Nielsen said. ‘When we see our state agencies cutting corners through privatization and … then these private companies are cutting corners and pressuring these employees beyond the breaking point, that should be a concern to everybody.’”