Prosecutor Discloses Complaints About State Health Lab to DUI Lawyers
This week's issue of Seven Days includes a story about two state chemists employed in the breath-testing program at the Vermont Department of Health Laboratory who have dropped some bombshell allegations.
Darcy Richardson (pictured) and Amanda Bolduc complained to their bosses more than a year ago about a coworker who they claim was inappropriately manipulating DataMaster DMT breath-test machines used by Vermont police agencies to arrest and prosecute drunk drivers. The state health department dismissed the chemists' claims as "not substantiated" and produced a two-page summary report, dated July 29, 2010, that cleared laboratory technician Steven Harnois of any wrongdoing.
Richardson resigned from the health lab last summer to become a private consultant, while Bolduc remains employed in the lab.
The chemists' statements were entered as evidence in a routine DUI case in Washington County Superior Court that's being handled by two well-known criminal defense attorneys: David Sleigh and Frank Twarog. Sleigh argues that by not disclosing the chemists' concerns to defense lawyers, the state was hiding exculpatory evidence.
Against that backdrop, a Lamoille County prosecutor sent an email to a group of defense lawyers and others on Monday afternoon disclosing Richardson's allegations and attaching an affidavit in which she describes systemic problems with the DataMaster instruments observed during her time at the lab.
In the email, obtained by Seven Days, deputy state's attorney Christopher C. Moll writes:
To all of you who practice DUI defense; I believe I am obligated to provide the following information which may or may not be exculpatory in all DUI cases which involve the DataMaster DMT. Normally this would just apply to an individual case, but because it involves a systemic problem, I believe my ethical obligations require broad disclosure. Many of you are fully versed in this issue and some of you may be making a litigation swath as we speak. Nonetheless, now that I am aware of this issue and have custody and control over a document, I now disclose the same:
Attached you will find the affidavit of Darcy Richardson.(Open using Microsoft Windows photo gallery). This was attached to a motion filed by Frank Twarog in a case which subsequently settled. However, it points to systemic problems. These problems may have been resolved at this time -- but I don't know as of yet.
It has come to my attention that there may be problems in the data entered during the initial evaluation period. In particular, the test results during the evaluation period and/or calibration of the DMT prior to being placed in field service may have been inaccurate.
It is my understanding that any "problems" which may have occurred during evaluation/calibration have been cured. Further that any problems which may have been present upon initial field service have now been cured as well. However I don't have any further information as to what, when, how, for how long, or who. It is my understanding that David Sleigh is hot on the trail so he may be a resource for further information.
What you decide to do with this information is your call.
In the attached affidavit, dated January 21, 2011, Richardson outlines myriad problems she encountered with DataMaster DMT instruments when she was employed as a chemist in the health lab's toxicology section, where she worked for eight years. Those problems began shortly after the first batch of 20 DataMaster DMTs arrived in 2006 and were still ongoing when Richardson department last summer, she writes. Today, Richardson owns Vermont Forensic Services in Milton; she was on retainer as an expert witness to Twarog. Download Richardson's affidavit here.
In response to questions about the reliability of the DataMasters, health department officials said that several DataMasters over a period of years were returned to the manufacturer for service or replacement, but they could not provide an exact number.
Asked whether DataMasters were deployed from the health department to Vermont police agencies before all the bugs had been worked out — as alleged by Richardson in her sworn affidavit — health officials provided this response:
"While the manufacturer of the DataMaster DMT continues to make hardware modifications and improvements to their product, all instruments in the service for evidential use have met and continue to meet the performance standards promulgated by the Department of Health Rules and Regulations regarding breath testing instruments. The user-interface software designed by the VDHL Breath Testing Program has been upgraded and continues to be refined; however the user interface software does not affect the accuracy of a subject's breath sample test."
Sleigh and Twarog questioned the director of the health lab, Mary Celotti, in a sworn deposition on March 18, but the testimony was cut short when an assistant attorney general advised Celotti not to answer questions about the investigation of the lab tech, Harnois, because it is classified as a personnel matter. Sleigh has since asked a judge to compel health officials to testify and produce documents relevant to the investigation. The judge has yet to rule on that motion.
Photo by Matthew Thorsen