In The News

In The News

Sunday, February 9, 2020

The latest on the #badbreathscandal

By Michael Nichols
Categories: OWI

Just when I thought the befoggery and dodgery could not be more blatant and plain, the Michigan State Police pulls a move to muddle yet again: this time they tell the witnesses who allegedly are the ones behind the #badbreathscandal that they are not to testify. That is right, we heard it right from the horse's mouth. Andrew Clark, the former contractor, who is supposed to be 1 of 2 contractors to falsify documents was served with a subpoena on Monday. He tells our process server "the state police have sealed my testimony."

Tell it to the judge.

First some backstory:

I probably had never pictured myself in such a scene: it's a cold, snowy Thursday morning in January and the Senate Judiciary Committee demanded the presence of the director of the Michigan State Police (MSP), Col. Joseph Gaspar and me to answer questions and address a scandal that undermined public confidence even further in the reliability of breath alcohol testing in Michigan. The key of takeaway of the whole sordid affair is that the MSP engaged in transparency only to the extent necessary to facilitate the perception of the public to renew confidence in drunk driving prosecutions. Before they do that, they have to demonstrate they understand the root cause of the problem because not just 1 but 2 of the 3 Class IV operators, who were responsible for compliance with the administrative rules to service and verify the accuracy of the instruments apparently falsified records maintained to demonstrate calibrations of the instruments.

The whole thing stinks. The biggest question that needs to be answered is when the "new guy" in charge of bringing the breath alcohol program into the 21st century discovered that there was foul play in how the technicians checked the calibration and accuracy of the instrument.

The MSP has publicly stated its goal is to gain accreditation for the breath alcohol program. To that end, the MSP hired W. Mark Fondren as the “technical leader” for breath testing. He started January 1, 2018. The position does not require a sworn member of law enforcement nor does it require a Ph.D.. Mr. Fondren is not a Ph.D. but he does hold a master’s degree in a hard science. Col. Gaspar testified that Fondren is the one who first observed irregularities -- oddly enough almost exactly TWO YEARS AFTER the day he started -- in the records maintained by the Class IV Operators who were hired through intoximeters. Fondren going through the records as part of a random audit is simply not credible.

The Class IV operators who were “caught” included Andrew Clark (lower peninsula, eastern half) and David John (lower peninsula, western half). The pair took over about a month apart in September and October, 2018 respectively. How they were trained and who trained them is a little vague. The attorney, when assessing how to approach whether to bring a motion for your client or argue the issue to a jury, should remember that there are 2 approaches to presenting a persuasive argument about the science behind breath testing.

The administrative rules were written by the MSP and can only be revised by the MSP after going through the process of publication. The lawyer often flyspecks logs (OD 84 and OD 33) for compliance or lack thereof with the administrative rules. But the prosecutor and police often argue that any rule violation was minor and not probative of whether the DMT was working reliably at the relevant time.

There is another way to go about this situation: the public was exposed to a new discussion about the reliability of breath test instruments. Remember, a breath test is an indirect measurement of what is inside the human body. It is an indirect measurement of a blood alcohol level. The instrument is designed based on several assumptions: those assumptions include that a person can deliver an acceptable volume and flow rate of breath and further, that the person is at or over the assumed partition ration of 2100 to 1. If the person is below that partition ratio, the instrument is over-estimating what’s in the person’s body. The partition ratio reflects the ratio of volatile organic compounds in the same amount of blood and breath in a person.

So, when the lawyer remembers that the burden is on the MSP to show that the instrument was working reliably at the time and the person was fit to give a breath sample and that the administrative rules are nothing more than the lowest standard and not the scientific gospel, the arguments will not be so constrained by the prosecutor’s attempt to argue that violations of the rule does not necessarily render a breath test estimate inadmissible.

The judges should all be aware of the issues generally with the bad breath scandal. The familiar refrain of “the instrument is generally-accepted – where is your evidence that it was not working properly” is out the door with the admission by MSP that breath test records have been falsified. The origin of what prompted the “document review” or “audit” by Mr. Fondren is important and yet to be fully developed. What the author is aware is that some records in Montcalm County were discovered missing in a case handled by Joshua Blanchard. Attorney Blanchard pushed the court to order the records to be produced. Apparently, David John (Montcalm is on the west side of the lower peninsula) claimed that he kept them separately. So, the records were not transparent and subjected to alteration. Further, whether Mr. John actually went to the jail to perform the service that he claimed he did for the 120 day calibration check was in question.

The status of the investigation into whether either Mr. John or Mr. Clark committed a criminal act is not final but the curious aspect of this saga is the question as to why the MSP was so willing and eager to declare that they were going to prosecute John and Clark criminally. It is possible that the criminal investigation is not intended to thwart FOI requests about the communications. Further, David John has written attorney Raquel Guzman and asserted that the MSP asked him not to comment on the issue in response to a subpoena that she served on him. So, if these guys are "blocked" from testifying -- which is frankly obstruction of justice -- what is a prosecutor to do when trying to show a judge or a jury that the datamaster DMT's accuracy and reliability were properly established and maintained? Here is the answer "trust me. I'm from the government and I'm here to help." Unacceptable. Hopefully judges and juries are going to show the bravery to reject this bill of goods and force the MSP to follow the tenants of good science.

Feel free to contact me at mnichols@nicholslaw.net or at 517 927 4734.



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Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.