The state police said that 59 cases came under review, but public records don’t say how many of those defendants had already been convicted. The 11 known dismissals are all in Lenawee County, in southeastern Michigan.

Police in Michigan often use two different pieces of equipment to test the blood-alcohol content of people they suspect of driving while intoxicated. The Preliminary Breathalyzer Test is administered roadside and used to establish probable cause. The second piece of equipment is called a DataMaster DMT and uses infrared technology to measure blood-alcohol content. These machines are typically kept at police stations and sheriff’s departments.

Michigan bought approximately 300 DataMasters from a company called National Patent Analytic Systems in 2011. Part of the contract included maintenance checks. In 2013, Intoximeters bought the DataMaster business from National Patent and took over the maintenance and inspection as well. A contract between the state police and Intoximeters from September 2018 required 120-day on-site inspections as well as routine maintenance and calibration for the approximately 200 machines still in service.

The state police said that it began noticing problems with Intoximeters’s work shortly after the contract was signed. On August 8, 2019, an official with the state’s budget office wrote the company and said, “since contract inception, there have been substantial performance issues related to timely certification of DataMaster instruments and failure of your employees to comply with basic security protocols.” The letter outlined an action plan to correct the problems.

One of the problems the state police reported involved Intoximeter technicians sharing passwords with law-enforcement agencies so police personnel could make repairs or perform calibrations directly, rather than through the Intoximeter employees. On January 13, 2020, the state police accused Intoximeters of fraud in its calibration and inspection of the machines. It took all the machines out of service, so they could be independently calibrated and inspected. The machines were then placed back in service a month later.

Separately, the state police began notifying prosecuting attorneys across Michigan about cases that might have been impacted by the alleged misconduct. These were the affected law-enforcement agencies: Alpena County Sheriff’s Department, Beverly Hills Police Department, Detroit Detention Center, Montcalm County Sheriff’s Department, Niles Police Department, Pittsfield Township Police Department, Tecumseh Police Department, and Van Buren County Sheriff’s Department.

A letter from the Michigan State Police to Burke Castleberry, the prosecuting attorney for Lenawee County, identified 12 blood-alcohol tests conducted at the Tecumseh Police Department that were impacted. Sgt. Gina Gettel said in the letter, also dated January 13, 2020, that the machine at the police station had not passed inspection during a check on February 15, 2019, but still remained in service until the repairs were completed on June 28, 2019. In one of those Lenawee cases the charge was still pending. In the others, Castleberry’s office filed motions to vacate and then dismissed the charges.

Documents received under public-records requests have redacted the names of the defendants in Lenawee County, and other jurisdictions have not released the names of their defendants. But the case of a defendant named Kerry Miller is known, because he filed a lawsuit in U.S. District Court for the Eastern District of Michigan against the state and Intoximeters, alleging that their misconduct led to his wrongful conviction.

Miller said that he was sitting in a parked car in the parking lot of a McDonald’s on March 10, 2019, when two Tecumseh police officers approached and asked whether he had been drinking. Miller said that he had consumed two beers earlier that day but had not drank anything in at least two hours. He said the officers gave him a preliminary Breathalyzer test, which they said he failed, and then took him to the police station, and measured his blood-alcohol content with the DataMaster machine. The officers said it came back .13%, well above the .08% legal limit. Miller was arrested and booked, then waited in the Lenawee County jail for about three hours. He said he had to take a Breathalyzer test when he left, and he said that he heard the deputies mention his new blood-alcohol content was .02%.

He pled guilty on May 14, 2019, to operating a motor vehicle while intoxicated. He was later sentenced to 18 months of probation and fined $1,000. He was also required to perform 240 hours of community service and to attend Alcoholics Anonymous. After Castleberry received Gettel’s letter, he filed a motion to vacate Miller’s conviction. A judge granted the motion and dismissed the charge on January 16, 2020.

In his lawsuit, Miller said: “At all relevant times, Defendant Intoximeters maintained a policy, practice or custom of knowingly failing to maintain proper devices, ensure their certifications, or otherwise comply with the Service Contract, including long after the State notified it of its deficiencies, and violating the constitutional rights of Plaintiff.”

Michigan canceled its contract with Intoximeters in April 2020. A month later, on May 21, 2020, Michigan Attorney General Dana Nessel filed felony charges against two Intoximeters technicians. She said that Andrew Clark and David John had created fictitious documents to say they had completed diagnostic tests on the equipment. On December 11, 2020, a judge in Eaton County Circuit Court dismissed Clark’s case, stating a lack of probable cause to support the charges against him. On December 14, 2020, John pled guilty in Kalamazoo County Circuit Court to nine felony charges: three counts of forgery, three counts of uttering and publishing, and three counts of using a computer to commit a crime. He was sentenced to nine months in jail and three years of probation.

According to the state’s investigation, John used a spare DataMaster at his home to create a false certification for equipment at the Alpena County Sheriff’s Department. At his sentencing hearing, John asked for leniency and to be spared jail time, in part because of the COVID-19 pandemic. But Judge Paul Bridenstine disagreed.

He said: “The impact this created, not just within a particular department, but the entire law-enforcement community as it relates to drunk driving investigations, [is significant]. Your behavior in that regard, whether you thought about it or not, was debilitating to the enforcement of serious criminal behavior.”

– Ken Otterbourg