MSP Update on State’s Evidential Breath Alcohol Testing Program
This morning Michigan State Police (MSP) Director Col. Joe Gasper provided testimony before the state’s Judiciary and Public Safety Committee on the findings to-date of the department’s investigation into issues with the state’s Datamaster DMT evidential breath alcohol testing instruments.
As of 7 a.m., discrepancies have been identified involving eight instruments at the following locations:
Instrument Location
Period of Timein Question
Number ofBreath Tests
Possible Criminal Act
Alpena County Sheriff’s Department
11/14/19 – 1/9/20
8
Yes
Beverly Hills Police Department
1/22/19 – 6/21/19
9
Yes
Detroit Detention Center
10/10/19 – 10/13/19
6
No
Montcalm County Sheriff’s Department
8/23/19 – 8/26/19
1
No
Niles Law Enforcement Center
1/15/19 – 2/18/19
7
No
Pittsfield Township Police Department
12/20/18 – 8/7/19
5
Yes
Tecumseh Police Department
2/15/19 – 6/28/19
12
Yes
Van Buren County Sheriff’s Department
11/21/19 – 12/9/19
4
No
As irregularities are identified, notification is made to the affected prosecutor regarding impacted breath tests. Prosecutors will review each case on a case-by-case basis to determine what actions to take.
On Jan. 13, 2020, the MSP took all 203 Datamaster DMT evidential breath alcohol testing instruments in the state out of service until they could be inspected and verified by MSP personnel. As of 7 a.m. this morning, 37 of 203 instruments have been returned to service following verification by MSP personnel that the instruments are properly calibrated.
MSP personnel are re-certifying the most frequently used instruments and those in areas with limited access to obtaining blood samples first, with hopes of returning all instruments to service by the end of February.
A criminal investigation by MSP into potential fraud committed by contract employees of Datamaster vendor, Intoximeters, is ongoing.
The below timeline of events was also shared with the committee today.
Timeline of Events:
September 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.
January 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.
August 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.
August 21, 2019 – MSP received a corrective action plan from Intoximeters that outlined their action plan to correct the contractual failures.
August 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 November 15, 2019. The technician and Intoximeters were both unable to explain this visit, casting doubt on the reliability of any tests conducted on August 23, 2019 through August 26, 2019 when an accuracy check was performed by the technician. This lack of documentation resulted in the dismissal of this OWI case.
October 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 October 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 January 7 to issue the stop work order.
December 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.
January 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.
January 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.
January 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.
January 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.
January 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
LANSING, MI — Michigan courts and police continue to work within a gray created by state marijuana legalization that contradicts federal law.
Not only are lines blurred by conflicting jurisdictional laws, and complicated by the division of the state’s medical and recreational statutes, but Michigan courts operate, in part, based on precedents established under the now-faulty premise that marijuana is illegal.
A court ruling could help to tidy things up a bit. The Court of Appeals in an opinion published Feb. 13, 2020 ruled that, while police must have more evidence than simply the scent of marijuana to justify a warrant-less vehicle search, lying or deceiving police may change that.
In November 2018, Trooper Allan Park of the Michigan State Police stopped medical marijuana caregiver Thomas Moorman at a gas station in the Upper Peninsula’s Alger County for speeding.
Park claimed he smelled “a strong odor of fresh marijuana emanating from the vehicle, which indicated to him that there was a ‘good quantity’ of marijuana in the vehicle,” the Court of Appeals said in their ruling.
Moorman said he had no marijuana but as questioning persisted, he admitted that he harvested some marijuana earlier in the day. He also told the trooper he was a registered medical marijuana caregiver with five assigned patients, the Court of Appeals said.
The court ruled. ” … We conclude that defendant’s behavior (denying the presence of marijuana) was inconsistent with being in lawful possession of marijuana … This behavior, in conjunction with the odor of marijuana, gave rise to probable cause …
The court did not address how possession of recreational marijuana might impact an officer’s right to conduct a vehicle search.
“[U]nder the automobile exception, the police may search a motor vehicle without the necessity of first obtaining a warrant if probable cause to support the search exists.”
In Kazmierczak, this Court held that “the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle, pursuant to the motor vehicle exception to the warrant requirement.” Kazmierczak, 461 Mich at 413.
This is an older article from 2012… but current news and victories are forthcoming. So we like to show the long struggle it’s been to achieve the small steps and sacrifices that have come and gone.
A judge admitted skepticism but is allowing two men convicted of distributing marijuana to continue using the drug for medical purposes.
Dean Ferretti, 38, of Utica; and Kent Currie, 40, of Kimball Township, were sentenced to two years probation Thursday by Judge David Viviano of Macomb County Circuit Court in Mount Clemens.
Originally charged with four counts of delivering or manufacturing more than 45 kilograms of marijuana and operating a drug house, they pleaded guilty to the lesser charges of distribution of marijuana ‘without remuneration’ and attempt to maintain a drug house, in a plea deal.
The men claimed they were growing marijuana in Lenox Township in 2010 under the Medical Marijuana Act. But they possessed more marijuana than allowed.
Viviano ruled both men could continue to use cannabis plant product to address injuries and conditions but warned they could not distribute marijuana even under the MMA.
‘I’m not going to tolerate you spreading marijuana in the community, medical marijuana or otherwise,’ Viviano told Ferretti. ‘I will allow you to continue to use – like I did while you were on bond – with a healthy dose of skepticism.
‘If I ever hear you’re spreading marijuana, you’re going to jail for a year.’
Ferretti’s attorney, Michael Komorn, said his client wouldn’t have broken the law in 2010 ‘if he knew then what he knows now’ about the MMA, which took effect in December 2008.
‘The law was relatively new,’ he said. ‘There’s a lot more guidance now.’
Both men described physical ailments that they said warrant marijuana use. They said they consume extracted marijuana in oil form and take prescription drugs, a situation about which Viviano seemed skeptical.
‘You think you’re going to get better eating pills and (taking) marijuana?’ Viviano said to Currie. ‘It’s hard to understand why you’re taking Vicodin at all.
‘What are you doing to get better?’
ONE FOR THE BOOKS An historical Macomb County news story involving Attorney Michael Komorn we like to bring back when some fresh news is going to be published regarding similar circumstances. If you have similar circumstances and need a highly experienced and well studied attorney in Michigan marijuana legal issues. Call us 248-357-2550
The Michigan State Police says it has discontinued the use of 203 breathalyzer machines, and it’s accusing the contractor involved of possible fraud.
The Michigan State Police have opened its own investigation into Intoximeters Inc., who calibrate the state’s DataMaster breathalyzer machines.
It alleged “performance-related issues” that could lead to more issues with the way the devices were serviced.
The issue could go all the way back to the beginning of MSP’s million dollar yearly contract with Intoximeters, which was signed in late 2018.
But several defense attorneys say Michigan State Police should not be in charge of any investigation into the matter, and are accusing MSP of a conflict of interest as they investigate one of their own contractors. The attorneys are calling for an independent investigation into the matter.
Michael Komorn a Farmington Hills-based defense attorney whose main focus is on DUI and drugged driving cases says that an independent investigation would also help with the question of what happens to the countless DUI cases that might be affected by this.
“If we have a full investigation by an independent body, maybe they would make a recommendation,” says Komorn. “That is a better way of going about it where an independent body identifies those who have been harmed, if people have been harmed, and they put forth a remedy of some kind, some redress for people versus some finding that’s in question.”
The Michigan State Police suspended the contract with Intoximeters Inc, the company that issues the state’s breath alcohol testing devices amid concerns the test results could be flawed.
A letter written to police departments and prosecutors statewide, stated police officials warned law enforcement agencies about “performance-related issues” with the Datamaster DMT breathalyzer devices, according to The Detroit News . Such issues could affect drunken driving cases. The letter did not identify the problems or how they were uncovered.
Attorney Michael Komorn stated “The idea that those two entities that are working together in a contract are now…one of them is investigating the other one for fraud is a remarkable circumstance.
” What is the impact going to be on those that have been convicted of these breath tests that were not disclosed to potentially be accurate that were not properly calibrated” Komorn questioned
State police Lt. Michael Shaw stated a stop order was issued when they “noticed some issues with the vendor that was responsible for maintenance and auditing the DataMasters around the state.”
“We will be (setting) up a unit in order to assume the responsibilities of that vendor,” Shaw said. “Authorities will keep using the devices, but Michigan State Police, not the vendor, will calibrate them,” Shaw said.
State police will also take over the contractor’s duties of certifying and serving the breathalyzer units.
Oakland University criminal justice professor Daniel Kennedy said such issues with the breathalyzer devices could be troublesome for drunken driving cases in Michigan.
“This could open the floodgates for appeals,” Kennedy said. “In drunk driving cases, one of the first questions any defense attorney asks is, ‘When was the last time the device was calibrated?’ So, if they found problems with how these things were being calibrated, that could wind up being one big mess.”
Here is the complete MSP statement on the situation:
Based on new information learned over the weekend, the Michigan State Police (MSP) is aggressively investigating potential fraud committed by contract employees of Datamaster vendor, Intoximeters, and also moving today to take all 203 Datamaster DMT evidential breath alcohol testing instruments out of service until MSP can inspect and verify each instrument to ensure it is properly calibrated. In the interim period, the MSP recommends that police agencies utilize blood draws rather than breath tests to establish evidence of drunk driving.
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.
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. 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. As a result, the MSP has opened a criminal investigation that is looking into possible forgery of public documents.
Defense attorneys say drivers should refuse Michigan’s new roadside drug tests.
Multiple defense attorneys say they would advise that their clients refuse Michigan’s new statewide roadside drug tests.
They’re too untrustworthy, they said.
The penalty for refusing the test is a civil infraction, the fine for which varies by community, but it’s a better option than having unreliable results used to prosecute you in court, said Michael Komorn, a highly experienced drugged- and drunk-driving attorney, who also specializes in marijuana law.
With legalization of recreational marijuana in November 2018 and the opening of retail marijuana shops across the state. The impact of marijuana impaired driving and public safety has heightened.
The usefulness of the saliva swab tests in identification of drug-impaired driving is exactly what state police hope to determine with a second-year long pilot program that kicked off in October 2019.
So you can have your future, family, finances destroyed, be publicly humiliated, lose your job, your future over a pilot program and testing of equipment to fund the court system. Call Komorn Law and fight that BS 248-357-2550
The first year of the pilot program lasted from November 2017 to November 2018 and included 12 police agencies or state police posts in five counties. The second yearlong pilot includes 125 officers, dubbed “drug recognition experts” who are trained to detect drug impairment and administer saliva tests.
To become a drug recognition expert, participating law enforcement must complete 72 hours of classroom study and 40 hours of field training.
In 2018, Michigan State Police data shows 247 drug-involved traffic fatalities, representing about one-quarter of the 974 traffic fatalities that year. In 2010, state police reported 153 drug-involved traffic fatalities, representing about 16% of total traffic deaths. While the drug blamed in those cases wasn’t identified 95 percent of the time, in cases where the drug was included, 70 percent involved marijuana, according to state police.
Read the Rest of The Story Here at MLIVE – There is much more
Jan 13, 2020 LANSING, MI — Multiple defense attorneys say they would advise their clients refuse Michigan’s new statewide roadside drug tests. They’re too untrustworthy, they say. The …
Jan 13, 2020 LANSING, MI — Michigan state police on Monday, Jan. 13, halted use of 203 breathalyzer machines utilized to determine blood-alcohol levels in drunk driving cases …
Feb 25, 2019 Legal attitudes towards marijuana are changing Michigan. Citing new laws and weak cases, Democratic Attorney General Dana Nessel is dismissing charges against four people in …
Jan 09, 2019 The industry hopes a new governor and legal weed will reform the medical marijuana program. One in four applications for a license to run a …
Nov 29, 2018 Lawyers say it’s an ironic suggestion that could land caregivers in jail. Michigan officials are proposing a solution to a shortage of medical marijuana in …
Mar 30, 2019 Officials are advising Michigan residents that food and drinks infused with CBD oil aren’t quite legal yet. “Being decriminalized and being legal are two different …
Dec 08, 2018 Officials are promising they won’t slap fines on businesses for buying marijuana from caregivers. To keep shelves stocked at licensed medical marijuana shops, state officials …
Sep 25, 2018 The results of a roadside test for marijuana in Michigan won’t be ready before Nov. 6. The results of a roadside drug testing pilot program …
