Breathalyzer Manufacturer Under Criminal Investigation For Falsifying Maintenance Records And Calibration Results

from the watched-over-by-machines-of-questionable-aptitude dept

In 2018, a report came out that added even more doubt as to the reliability of breathalyzers. A number of factors -- including incorrect calibrations and ambient air temperature -- could turn innocent breath into guilty breath. Cops value breathalyzers since they're easy to deploy and don't have the warrant impediments of blood tests. But they're often relying on faulty equipment.

The 2018 discoveries were reaffirmed in 2019 when a New York Times investigation uncovered more problems with breathalyzers. Equipment used in the field was rarely recalibrated and active chemical agents rarely replaced. One breathalyzer used by Michigan police was found to have rats nesting inside of it.

Faulty equipment is only one of the problems. The bigger problem is that it's almost impossible to challenge in court. The private companies behind breathalyzer equipment have inserted themselves into court proceedings, claiming any examination of devices and source code could result in the exposure of proprietary information that (they imagine) could harm their market position and future sales.

Manufacturers are partially correct, but not for the reasons they've stated. The more these devices and their deployments are examined, the less they seem to be a gold standard for detecting intoxication. And now it's the producers of this equipment that might be facing criminal charges, as Blake Montgomery reports for The Daily Beast. (h/t BentFranklin via the Techdirt chat window)

A major breathalyzer manufacturer is under criminal investigation for possible forgery. Police forces nationwide have been using the same company’s machines to turn alleged drink-drivers into convicted ones—seizing licenses, imposing fines, and, in some cases, imprisoning people.

The manufacturer is Intoximeters, which produces the Datamaster DMT used by the Michigan State Police. An investigation into the vendor uncovered a great deal of concerning misconduct, according to this report by The Detroit News.

State police director Col. Joseph Gasper said in a statement his department also has launched a criminal investigation into the alleged fraud by the St. Louis, Missouri vendor, Intoximeters, Inc.

"Based on new information learned over the weekend, the Michigan State Police ... 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," Gasper said.

State police will now have to use blood draws to obtain evidence of intoxication. This reverses the MSP's first response, which was to perform recalibration of all the devices itself, rather than allow the apparently-untrustworthy employees of Intoximeters to do it.

This will likely trickle down to other Michigan law enforcement agencies currently using Intoximeters equipment. And it will trickle down to the state's courtrooms where defense attorneys are expected to start filing challenges to current prosecutions and past convictions that relied on evidence obtained with these devices.

This may mean Intoximeters may finally have to divulge information it has so far successfully managed to keep out of court. This sort of reasoning isn't going to fly if it's proven the company's employees falsified records.

[T]he company has resisted at least three Minnesota court mandates that police furnish the source code of its breathalyzer software to defendants, court records and interviews show. Instead of cooperating, Intoximeters has submitted documents saying it is open to police doing so—contingent on various conditions—and then opposed requests to actually follow through.

It's an intentionally-designed catch-22. Law enforcement agencies can hand over the source code to courts, except they really can't because their contracts with Intoximeter make it clear the source code belongs to the company, not the cop shop. The cops can't turn over what they don't own. And even when a court order directly targets the manufacturer, the Missouri-located company can dodge compliance --like it has in Minnesota -- by being out of the court's reach due to jurisdictional limits.

Preventing successful evidence challenges in court has allowed Intoximeters to operate with almost no accountability. And when that happens, things like the malfeasance currently under criminal investigation is pretty much guaranteed to follow. Every device maker bills its product as the evidentiary gold standard. But, as multiple investigations have shown, this standard is more tin than gold.

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Filed Under: accuracy, breathalyzer, calibration, falsifying records


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  • icon
    That One Guy (profile), 7 Feb 2020 @ 12:10pm

    '... what evidence?'

    And even when a court order directly targets the manufacturer, the Missouri-located company can dodge compliance --like it has in Minnesota -- by being out of the court's reach due to jurisdictional limits.

    It strikes me that there's likely a very easy way to force the issue, and it's one that should have been applied from the very start:

    If the defense can't examine and verify the evidence, it's not allowed in court.

    Intoximeters(or any other company) wants to play keep-away then great, none of the evidence from any of their devices are admissible, such that police are just wasting their time if they try to introduce such evidence in court, and if they want admissible evidence either the company caves or the police find one with less restrictive rules.

    A judge might not be able to force compliance due to jurisdictional limitations, but I'd be very surprised if they couldn't bar evidence under the standard that if the defense has no way to verify it to make sure it's accurate and/or collected legally it's not allowed.

    reply to this | link to this | view in chronology ]

    • identicon
      kog999, 7 Feb 2020 @ 12:53pm

      Re: '... what evidence?'

      completely right, i dont understand how a court could in good conscience say well we can't get any details about this evidence so lets just assume that it is 100% correct and move on.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Feb 2020 @ 12:54pm

      Re: '... what evidence?'

      If the defense can't examine and verify the evidence, it's not allowed in court.

      The next step would be to forbid collection of "evidence" that's known to be inadmissible—i.e., establish a warrant requirement and forbid issuance of warrants not likely to result in usable evidence.

      reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 7 Feb 2020 @ 1:27pm

      Re: '... what evidence?'

      Exactly, I don't remember proprietary information or industrial secrets being mentioned anywhere in the Constitution, whereas being able to confront ones witnesses is.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Feb 2020 @ 1:35pm

      Re: '... what evidence?'

      Courts don't want to bar evidence. DUIs are their meat and potatoes!

      reply to this | link to this | view in chronology ]

    • identicon
      Paul B, 7 Feb 2020 @ 4:34pm

      Re: '... what evidence?'

      If I recall, MAD in the 90s put a stop to this very line of thought by passing a bunch of "Tough on DWI" laws. When people pushed back in court, MAD went even more crazy and passed laws that said the machines were true regardless of anything else.

      More fun a lot of DWI laws kick in at accusation instead of conviction.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 7 Feb 2020 @ 1:10pm

    I thought..

    That to have a copyright and hold it, they had to Write it down and give a copy to the CR office?
    And any changes had to be added to the CR.
    This would be the only way to Protect your code from being copied Randomly, by another company.

    Otherwise you could State that any other company was copying your CR. But why do that, when you would both have to SHOW the Programming.

    But general Maintenance?? Cleaning the Machines?>? Updating the software??
    And you thought general Forensics was bad.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Feb 2020 @ 2:14pm

    Opulence via Arcane Magicks

    "Every device maker bills its product as the evidentiary gold standard."

    The Alchemist's Dream Come True - turning stupidity into gold...stupidity's WAY more common than lead.

    reply to this | link to this | view in chronology ]

  • identicon
    Zonker, 7 Feb 2020 @ 3:55pm

    One breathalyzer used by Michigan police was found to have rats nesting inside of it.

    How drunk were those rats?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2020 @ 9:29am

    just let someone else blow for you -- DUH!
    (yez, im drunc)

    reply to this | link to this | view in chronology ]


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