Wrongful Conviction?
The lynchpin of Michigan drunk driving prosecution is a reliable breath testing program. Prosecutors have big problems when this reliability is legitimately called into question.
This is exactly what has happened recently in Texas where it is reported that between 1200 and 4000 breath tests were fraudulently verified.
According to the Huston Chronicle a Department of Public Safety contractor by the name of Deetrice Wallace fraudulently manipulated the state’s breath testing machines causing thousands of wrongful DUI convictions. Instead of changing the reference sample every month as required Wallace instead falsified the tests and pocketed $146,000 in profit.
Something similar happened not long ago in the state of Washington where the state police faced fraudulent breath testing on an even larger scale. The breath test scandal in that state caused Barry Logan, director of the Washington State Patrol Forensic Laboratory Services Bureau, to resign. According to the Seattle Times:
Logan’s resignation comes just two weeks after a panel of King County judges ruled that the state toxicology lab — one of the two labs overseen by Logan — engaged in “fraudulent and scientifically unacceptable” practices while preparing and analyzing breath tests used to prosecute suspected drunken drivers. The judges called for the suppression of the tests and laid much of the blame on Logan, finding he bore “a good deal of the responsibility for [the lab’s] shortcomings.”
Michigan has not suffered from a similar debacle, but Michigan’s breath testing program is certainly not immune from such problems.
Michigan’s breath testing administrative rules in part read as follows:
Rule 3. (1) An evidential breath alcohol test instrument shall be verified for accuracy at least once at any time during each calendar week, or more frequently as the department may require, by an appropriate class operator pursuant to R 325.2658(4). The tests need not be performed within 7 days of each other, but shall be performed less than 14 days apart. The test for accuracy shall be made in a prescribed manner using an alcohol standard that is approved by the department. For the instrument to meet the requirements for accuracy, a test result of .076 to .084 shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor.
Typically Class II operators of the various police departments, jails and other law enforcement agencies prepare and run the weekly simulator tests. These are simply police officers who have only a single 6 hour day of training with at least a 70% on the written test. There is no proficiency testing and no oversight regarding this aspect of Michigan’s breath testing quality assurance program.
A Class IV operator will run the 120 day inspections. In neither case is there a state agency charged with oversight.
If fraud is every to be uncovered it will be due to the efforts of the criminal defense bar. Without oversight thorough discovery and exhaustive cross-examination is the only hope a falsely accused driver has to vindicate his wrongful drunk driving charge.
If you’ve been arrested in Michigan for drugged driving, call the Barone Defense Firm today for your FREE case review.
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baronedefensefirm – who has written 204 posts on Michigan Drunk Driving Lawyers.
Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.