Discrepancies found in 8 breath alcohol testing devices so far, potentially impacting 52 cases

LANSING, Mich. - Editor's note: A photo that was previously used in this story inaccurately portrayed the device that has been suspended by Michigan State Police. The devices that were taken out of service are Datamaster DMT breath alcohol testing instruments, not Smart Start devices. 

Since suspending more than 200 breath alcohol testing devices, Michigan State Police have identified eight instruments with discrepancies, potentially impacting 52 breath test cases.

Testifying in front of the state's Judiciary and Public Safety Committee, Director Col. Joe Gasper told lawmakers that as of 7 a.m., devices with irregularities were located in eight different departments, including the Detroit Detention Center.

As state police have reviewed records connected to the equipment, they have also been conducting a criminal investigation into potential fraud committed by employees contracted through the breath alcohol testing company, Intoximeters. In total, 37 of the 203 devices that were pulled from duty have been returned following recalibration.

Departments that have been impacted are the Alpena County Sheriff, Beverly Hills Police, the Detroit Detention Center, Montcalm County Sheriff, Niles Law Enforcement, Pittsfield Township, Tecumseh Police Department and Van Buren County Sheriff.

It's unclear how many instruments will reveal discrepancies, or how many cases they were used in. However, it's possible that many of those cases could be called into question. Shanon Banner, a public affairs official with MSP said upon discovering any discrepancies, all relevant prosecutors in those cases are notified. How they pursue each follow-up to the cases is up to them.

Evidence in at least seven known cases was thrown out in the past year due to errors with the devices. 

Below is a timeline compiled by Michigan State Police leading up to the beginning of its investigation.

The three-year contract between law enforcement and Intoximeters began Sept. 1, 2018. In January, State Police created a new position within its forensic science division titled the breath alcohol technical leader, in an effort to bring the state's testing program into alignment with lab standards. A few months later, MPS put workflow requirements into place to ensure their equipment testing vendor was in compliance with state law.

Once these controls were put in place is when police began to identify noncompliance with the vendor's technicians.

On Aug. 9, 2019, state police asked the Michigan Department of Technology, Management and Budget to send a letter to Intoximeters, outlining a breach of contract after identifying repeated failures by its technicians. 

Examples of that noncompliance include over 60 cases of not performing certifications in a timely fashion, incorrectly recording during instrument checks and sharing instrument passwords with jail staff.

Shortly after the notice, state police received a corrective action plan on Aug. 21 from Intoximeters that it would correct its failures. Two days later, an Intoximeters technician committed a "serious error" that resulted in the dismissal of an operating-while-intoxicated case in Montcalm County.

On Oct. 10, a similar error occurred that dismissed evidence in six cases in Wayne County.

By December 2019, state police had established its breath alcohol technical leader in the forensic science division. During a routine audit on Jan. 2, 2020, state police identified another irregularity in an instrument in Alpena County. On Jan. 6, law enforcement confirmed the irregularity was the result of a technician fabricating paperwork for a required test.

On Jan. 7, a stop-work order was issued with Intoximeters, all equipment supplied through them and their three technicians.

On Jan. 10, MSP finalized its emergency plan to immediately bring all maintenance responsibilities for the state's 203 instruments. 

Finally, on Jan. 13, state police conducted a review of records from the technicians, revealing more discrepancies involving a second contracted employee. The findings impacted three more instruments in police departments in Beverly Hills, Pittsfield Township and Tecumseh.

Jack Nissen is a reporter at FOX 2 Detroit. You can contact him at (248) 552-5269 or at Jack.Nissen@Foxtv.com