MSP breathalyzer fraud problem could affect municipal prosecutions

Richard L. Hillman
Foster Swift

On January 14, 2020 the Michigan State Police (MSP) notified all local law enforcement agencies to discontinue using their evidential breath alcohol testing devices due to apparent fraudulent recordkeeping by a third party vendor that had contracted with MSP to inspect and service the devices. All breathalyzer instruments throughout Michigan are required to be purchased and maintained by MSP.

Under the Michigan Vehicle Code, MCL 257.625a(4)(g) the department of state police is required to promulgate rules for the administration of chemical tests for cases involving operating under the influence of alcohol. Administrative Rules R 325.2653 requires that evidential breath alcohol test instruments shall be inspected, verified for accuracy, and certified as to their proper working order by a certified class IV operator or the manufacturer’s authorized representative every 120 days. In the past, MSP had trained staff to perform the inspections but in recent years, MSP has contracted with a vendor, Intoximeters, to perform the inspections.

As of this writing, it is unclear how long the fraudulent practice was occurring, though MSP records show that the vendor was notified that corrective action was required in August of 2019. It is expected that criminal defense attorneys will likely challenge the admissibility of datamaster tests that were pending prior to the January 2020 announcement by MSP. It is also likely that courts will be asked to re-examine some closed cases that may have relied upon breath instruments that may have been subject to fraudulent record keeping.

Municipal prosecutors will need to keep in mind that MCL 257.625a(7) states that the provisions relating to chemical testing do not limit the introduction of any other admissible evidence bearing upon whether the person was impaired or under the influence of alcohol. Prosecutors will need to argue that there was sufficient evidence of guilt, even without the breath test results, to support convictions.

Dash-cam and other video evidence gathered by the police should be preserved to help support recent drinking and driving convictions. The Michigan Court Rules set strict time limits on motions to set aside pleas and motions for new trials—which generally must be brought within 42 days after sentencing. Prosecutors may be able to object to many potential motions involving the breath tests as being untimely.

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Richard L. Hillman is an attorney in Foster Swift’s Lansing office, and has been practicing criminal law for more than 30 years. During his many years of practice as a defense lawyer and prosecutor, he has handled thousands of drinking and driving cases. He is frequently called upon to provide legal advice to members of the law enforcement and legal communities and has served as special counsel for the cities of Lansing and East Lansing.