Attorneys Accuse Michigan State Police of Conflict of Interest Over Breathalyzer Probe

Michigan defense attorneys who deal with DUI cases say their phones are ringing off the hook.

The calls are from clients wondering whether their drunk driving cases might be affected by a bombshell announcement made this week by the Michigan State Police.

The agency says it has halted the use of 203 breathalyzer machines, and it’s accusing the contractor involved of possible fraud. MSP has opened its own criminal investigation into Intoximeters Inc., which calibrates the state’s DataMaster breathalyzer machines. It cited “performance-related issues” that might point to wider issues with the way the devices were serviced.

Click on the audio player above to hear MichMash hosts Jake Neher and Cheyna Roth talk about how this issue dredges up longstanding debates about law enforcement and forensics in Michigan, and how it affects you.

The issue could go all the way back to the beginning of MSP’s $1.3 million dollar yearly contract with Intoximeters, which was signed in late 2018. 

But several defense attorneys say Michigan State Police should not be in charge of any investigation into the matter, and are accusing MSP of a conflict of interest as they investigate one of their own contractors. The attorneys are calling for an independent investigation into the matter.

Farmington Hills-based defense attorney Michael Komorn specializes in DUI and cannabis cases. He says an independent investigation would also help with the question of what happens to the countless DUI cases that might be affected by this.

“If we have a full investigation by an independent body, maybe they would make a recommendation,” says Komorn. “That is a better way of going about it where an independent body identifies those who have been harmed, if people have been harmed, and they put forth a remedy of some kind, some redress for people versus some finding that’s in question.” 

Neil Rockind agrees. He’s a Bloomfield Hills-based attorney who specialized in DUI cases.

“I would never allow one of my children to conduct an investigation into whether he or she did something wrong in my house,” says Rockind. “The idea that we’re even having a conversation about whether it’s appropriate to have the Michigan State Police conduct a criminal investigation of its own breath testing program and its own contractors is sort of ludicrous.”

“Independence is the hallmark of our ability to have confidence in any given result,” says East Lansing-based defense attorney Mike Nichols. He points to bills in the state Legislature that call for a forensic science commission as a possible vehicle for an independent investigation. “We could easily add to those bills a panel to conduct such an investigation, and quite frankly take a look at rewriting our entire statutory scheme and the administrative rules for conducting, implementing, and reporting chemical tests in the state of Michigan.”

Each attorney connects this situation with larger, longstanding debates about the independence and reliability of forensic scientists in the Michigan State Police Crime Lab. They say the lab is subject to undue pressure from law enforcement and prosecutors to deliver results that bolster their cases. A former crime lab director has said for years that he himself faced this kind of pressure during his tenure from 2010-2012. This has led for calls over many years to separate the crime lab and its scientists from MSP.

When asked for comment, MSP spokesperson Shanon Banner sent an email with the following statement:

“We are committed to conducting a thorough and complete investigation and if we find criminal acts occurred, we will pursue criminal charges against those responsible.  We will also aggressively pursue any remediation available to the department, including possible legal action, in order to recoup costs borne by the state as a result of this issue.”