During state-wide breathalyzer fraud probe, Mich. police turn to slower blood tests

Officials say the recall of portable breathalyzer tests adds time, inconvenience to drunk driving arrests and court cases


Gus Burns
MLive.com

WALKER, Mich. — In the Michigan county with the highest rate of drunk driving arrests, suspects can expect a blood draw.

“The effect on our office will be increased labor cost, taking the person to the hospital and waiting in line for the test to be conducted, meaning that the officer is out of service while they drive to the hospital, wait for the test, and then take the arrestee to the Jail for booking,” said Crawford County Sheriff Shawn M. Kraycs, who manages nearly 15 full-time deputies in a county of nearly 14,000 people. “That is what we will have to deal with in this small community. When you only have two or three officers on duty, you can see what taking one officer off the available lists would do.”

Suspect breathalyzer machines responsible for thousands of drunk-driving charges in Michigan each year are “out of service.” Drunk driving arrests, however, are not on hold.

Michigan State Police, in light of questions about the reliability of the state’s 203 breathalyzer machines and the company hired to test and calibrate them, placed the machines out of service Monday, Jan. 13.

As a result, defense attorneys and police from agencies across the state tell MLive arrested drivers will endure more needle pricks as officers revert to blood draws for drunk driving arrests; police will spend more time guarding and transporting suspects between hospitals and jail prior to booking; postage costs and hospital fees will rise as agencies mail blood samples to the state police forensic lab; prosecutors will wait longer to press charges in cases where a blood-alcohol levels are crucial; and courts may face new appeals in cases where suspect breathalyzer evidence was key to conviction.

Michigan State Police publicly accused employees of Intoximeters Inc., the St. Louis-based company hired in 2018 to calibrate and maintain the state’s breathalyzer machines, called Datamaster DMTs, of fraud.

The nearly $1.3 million annual contract calls for Intoximeters employees to calibrate and certify each of the state’s breathalyzer machines at least once every 120 days. The various agencies that house the Datamasters are responsible for running periodic tests to ensure they remain accurate. Intoximeters is also responsible for providing “expert testimony" in court regarding the reliability and operation of the Datamaster machines manufactured by National Patent Analytical Systems of Mansfield, Ohio.

National Patent Analytical Systems of Mansfield, the company that continues to manufacture the machines, previously handled the maintenance duties that shifted to Intoximeters when their contract ended in 2018.

Michigan State Police Col. Joe Gasper accused Intoximeters employees of “deceptive” falsification of “certification records” and said an audit discovered “egregious discrepancies” in data collected from eight machines at various departments. The ongoing investigation is expected to expose even more issues.

“Review of vendor records in the last two days has yielded additional discrepancies that may point to the potential for a more widespread issue with the way in which some instruments were being serviced,” Gasper said Monday. “While the discrepancies do not directly impact or deal with the results of evidential breath tests, it is concerning that it appears as though some certification records have been falsified.”

MLive has requested comment and is awaiting response from Intoximeters representatives.

While blood-alcohol results from roadside, handheld breathalyzers (PBTs) are not admissible in court and used mainly to determine probable cause before a drunk driving arrest, the sophisticated Datamaster machine is larger, stationary and often located in the booking area of county and local jails.

Those blood-alcohol results are considered scientifically reliable and allowed as evidence in court. The Datamaster uses what is referred to as “infrared spectroscopy,” a process that involves shining lights into a suspect’s breath to determine alcohol content.

State police on Jan. 13 asked agencies to halt use of the machines and instead conduct blood draws for evidence. Trained troopers have assumed calibration and certification duties.

" ... Placing the instruments temporarily out-of-service and assuming responsibility for maintaining all Datamasters in the state is an extreme move that places a burden on all of the state’s law enforcement resources, but it is an absolutely necessary move to safeguard the integrity of the criminal justice process," Gasper said.

Crawford County isn’t the only one making adjustments.

In Emmet County, where the 2018 per capita drunk-driving arrest rate was the second-highest in the state in 2018, 82 per 10,000 residents, Sheriff Peter A. Wallin said, “there’s going to be additional steps.”

“Obviously, they’re going to have to take everybody to hospital for a blood draw,” said Walling, the 39-year law enforcer. “It’s going to add a little time to the arrest ... Everyone is going to be responsible for transporting to the hospital, getting the blood draw, doing the blood kit."

Wallin, who attributes the high drunk-driving arrest rate in Emmet County to proactive police work, guessed it could add an hour to each arrest. That’s in addition to a $15 per-draw fee paid to the McLaren Northern Michigan Hospital in Petoskey and postage to mail the sample to state police.

“I mailed one out today,” Wallin said Tuesday. “Sometimes they come back in a month.”

Other agencies, such as the Oakland County Sheriff’s Office, told MLive they usually receive blood-alcohol toxicology results from state police in 10 days or less.

State police maintain say average turnaround time on blood testing is five days, as it’s been for two years, said state police spokeswoman Shanon Banner.

“We do expect an increase in turnaround time due to an expected increase in blood draws,” Banner said. "To prepare for the additional cases, we are shifting some trained employees from other disciplines back to toxicology temporarily.

“We can’t say with certainty what the turnaround time will be, but we do not expect it to increase by weeks or months due to the steps we are taking to add staff in the interim.”

The State Police Toxicology Unit currently analyzes approximately 16,000 blood samples for the presence of alcohol each year, nearly 44 per day, according to the unit’s website. Based on 17,723 Datamaster breathalyzer tests conducted in 2018, the lab’s daily workload could double while the machines are out of service.

Emmet County law enforcement used the Datamaster during 137 drunk-driving arrests in 2018, state police reports show. There were 90 blood draws over the same period.

Previously, Emmet County deputies limited blood draws to fatal or serious-injury accidents, cases in which suspects declined a breathalyzer and a search warrant to draw blood was obtained or if the suspect faced a third-offence operating under the influence of liquor charge, Wallin said.

The sheriff said some drivers are incorrectly under the impression a court-ordered search warrant is required for a blood draw.

Under Michigan’s “implied consent law,” all licensed drivers have technically consented to submit to chemical testing during an impaired-driving arrest, which includes a breathalyzer, urine or blood test, as determined by the arresting agency. Refusal results in an automatic yearlong driver’s license suspension and police still may forcibly draw blood with a court-ordered search warrant, Mullin said.

In Mackinac County, a tourist area that had the ninth most drunk-driving arrests, per capita, in 2018, Sheriff Scott A. Strait said he expects the breathalyzer change to have little impact.

“It’s just a tool that we use in detecting crime and to make sure the public is safe,” Strait said. “We don’t have that tool right now and we’ll figure out alternative ways to make sure the public is still safe."

Strait said there are other, equally harsh crimes, such as operating while visibly impaired, that drivers may face instead of operating while intoxicated, which usually requires evidence of the driver’s blood-alcohol level.

Observations by officers and jail staff, as well as standard field sobriety tests, can be equally damning in court, the sheriff said.

The 40-plus Datamasters located throughout Oakland County remained busy in 2018. According to the state’s annual drunk driving report, nearly 50 agencies in the county of 1.25 million people administered Datamaster breathalyzer tests to 2,738 suspects. That’s an average of nearly eight people per day, who may now be transferred to local hospitals for blood draws.

However, the largest police agency in the county, the Oakland County Sheriff’s Department, which employed nearly 900 deputies in 2018, according to FBI data, seldom used the breathalyzer machines kept in its county jail.

In fact, due to the lack of use, state police removed one of the jail’s two Datamaster in 2019 and relocated it, Oakland County Sheriff’s Capt. Christopher W. Wundrach said.

The jail administered breathalyzer tests 112 times in 2017, 67 times in 2018 and 74 times in 2019, Wundrach said. State police reports indicate Oakland County deputies instead submitted blood for alcohol testing 356 times during the same year.

Wundrach said the arresting deputy chooses a blood or breath test at their discretion. Despite being more invasive, time consuming and costly at $25 per draw, some deputies prefer using blood because the results are more difficult to dispute in court, Wundrach said.

While it’s unclear when breathalyzer machines across Michigan will be calibrated, re-certified and placed back in service, state police have begun the process.

Two machines at the Kent County Jail were tested, deemed accurate and returned to service Tuesday.

McClatchy-Tribune News Service

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