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April 27, 2011

Statehouse Hearing Uncovers More DUI Breath-Testing Problems

DSC09632**Updated below with statement from Department of Health spokesman Robert Stirewalt**

New troubles are surfacing around the breath-testing devices Vermont uses to prosecute drunk drivers.

In a hearing at the Statehouse Wednesday, state officials revealed that a DataMaster DMT breath-testing instrument at the South Royalton state police barracks was malfunctioning over a period of several months last year. The problem was fixed in September, Department of Health officials said, but no one was notified until a defense attorney made the discovery last week.

As a result of the malfunction, 70 drunk drivers charged in Windsor and Orange counties during that time frame are having their cases reviewed to determine whether they were convicted on flawed evidence.

A frustrated Sen. Dick Sears (D-Bennington), chairman of the Senate Judiciary Committee, called for the Shumlin administration to investigate why the problems weren't revealed sooner.

"There's a lot of people who might not have been guilty," Sears (pictured) said during a morning hearing. "Can you imagine if this was DNA stuff and we convicted the wrong person for murder, or let somebody off for murder? We've got to get this stuff right."

As first reported by Seven Days, the DataMaster DMT breath-testing devices are under scrutiny after a current and former state chemist alleged that a colleague, lab technician Steven Harnois, had tampered with them over a period of several years to get them to "pass" routine performance tests. The allegations were revealed in a run-of-the-mill drunk driving case in Washington County that is being handled by criminal defense attorneys David Sleigh and Frank Twarog. Harnois was cleared of wrongdoing by health officials following an internal review completed last May.

In response to growing questions about the DataMasters' integrity, Gov. Peter Shumlin yesterday proposed transferring the breath-testing program from the Department of Health to the Department of Public Safety. Unlike the state crime lab, the health lab is not accredited by an independent party. That would change if it fell under DPS. The Judiciary Committee took testimony from a parade of health and law enforcement officials this morning on legislation to codify that move into law.

DSC09629 The problem with the South Royalton DataMaster amounts to a filter not being switched on. James Mongeon, executive director of the Department of State's Attorneys and Sheriffs' Association, told committee members that the instrument filter that detects "interfering compounds" in breath samples was "turned off" for a time period, meaning test results may have been inaccurate.

"I do not know why it was turned off," said Mongeon (pictured). "But it was turned off for a significant period of time and we learned about it this week. As a result, state's attorneys in Windsor and Orange counties will be re-evaluating all cases that came from this instrument."

Exactly how long it was "turned off" remains unclear. Health department official Dixie Henry said the problem was discovered in May 2010 and fixed in September with new software that prevents the DataMaster from functioning if the filter isn't turned on.

However, in an email sent to members of the Windsor County DUI Defense Bar on April 25, Windsor County Deputy State's Attorney David Cahill wrote that the South Royalton DataMaster did not have its "accuracy check" feature activated for an 11-month period — from May 25, 2010 through April 11, 2011. As Cahill explained, that may have allowed the instrument to administer evidentiary tests in the presence of interfering compounds — which it should not have done.

DSC09661 Henry said that "does not necessarily mean that tests conducted on that machine were not accurate." She said the state can look at data from any individual test to determine whether it took an accurate reading. Henry said the health department has asked staff to review all machine certifications to ensure all 67 DataMasters in use around Vermont have that filter switch turned on.

Defense lawyers have complained that by not revealing the ongoing problems, or alleged problems, with the breath-testing instruments, the state was hiding "exculpatory" evidence that could have helped clients charged with drunk driving. Following the hearing, neither Henry nor Vermont Health Commissioner Harry Chen (pictured at right) would discuss that issue or explain why the information wasn't revealed to prosecutors when it came to light, saying the matter involved "ongoing litigation."

Defender General Matthew Valerio testified that the biggest concern for defense lawyers is trying to identify the volume of cases that might have to be re-opened in light of the apparent breath-testing problems. Vermont courts see more drunk driving cases than any other crime besides violation of probation, Valerio said. He estimated that the number of affected cases here could range from "a couple hundred to a thousand."

"This could be huge," Valerio said.

DSC09643 Public Safety Commissioner Keith Flynn (pictured), a former state's attorney, pointed out that police don't need a breath-test to convict someone of drunk driving. Rather, he said, they merely need to prove a driver was under the influence and can determine that using other evidence, such as bloodshot watery eyes, slurred speech, or a driver falling out of a car.

"You can prosecute someone for being under the influence without ever putting a test into evidence," said Flynn.

That may be true, Valerio said, but it's extremely rare in cases where an accused drunk driver pushes the case to trial.

"I would much rather try a case without a test," Valerio said. "I can't remember ever losing one without a test. People expect a test."

**Update - 5:30 p.m. **

Department of Health spokesman Robert Stirewalt released the following statement Wednesday afternoon concerning Shumlin's proposal to transfer the state's alcohol testing program from the Department of Health to the Department of Public Safety.

As Gov. Peter Shumlin announced yesterday, the State is asking for a legislative change to transfer the alcohol testing program from the Vermont Department of Health Laboratory to the Department of Public Safety’s Forensic Laboratory.

This transfer, which would consolidate DUI forensic evidentiary work at Public Safety, has been under discussion for many years. With the new Public Safety Lab facility in Waterbury, and a new Public Health Lab planned for construction – this is an opportune time to make that change and maximize efficiencies for both agencies.
For these reasons alone, the Health Department supports this move.
In a message to staff, Health Commissioner Harry Chen, MD praised the skilled and dedicated laboratory staff, who are working every day for the health of Vermonters.
The Health Department takes its responsibilities to serve the public good very seriously. Allegations of wrongdoing by laboratory staff are unfounded.

I love how Flynn is all causal about prosecuting people without a shred of evidence other then red eyes and slurred speech. Because there are no other reasons a person could have that combination of physical afflictions??

Get rid of the DataMaster all together and go to directly measuring blood. That is after all what the law states, and the data master is merely an estimation of blood content. Facts are fact and evidence is evidence, in this country we are innocent until proven guilty beyond a shadow of a doubt. Not a preponderance of doubt.

Sounds like Flynn may have smoked too many fiber optic cables when he failed to follow through on the Burlington telecom investigation.

Don't you love how they are all over Vermont Yankee but when the State Effs up 1,000 DUI cases due to faulty maintenance of equipment it's no big deal?

A lot more people have died and will die from the drunk drivers they're probably going to have to un-convict because they eff-ed up with the datamaster, than have died or ever will die from VY (to date: zero).

I discovered the problem with the South Royalton Datamster DMT in a DUI case in which I represented a Massachusetts driver around September of last year. I obttained a plea agreement to a lesser charge for other reasons, therefore I did not have to introduce nor inform the prosecution of the problem I had found. The other grounds related to the machine going forward witht he defendant's test although the machine's software should have shut the machine down when the simulator solution was below the acceptable range. I have had other cases in other counties cahllegened or dismissed for various problems with this particualr machine. As more problems have come to light and more challegens have been made, I pulled out last year's case invovling the South Royalton machine, pulled up the email from the former state chemist to me addressing the problem with the switch having been turned off and remainnig that way, and shared that email.

Gary, so are you saying the state knew about it back in Sept of last year, or you knew about it and didn't disclose back in Sept of last year ?

JCARTER - Second question first: I knew about it as the result of my background work in defending a person charged with DUI on an ATV who submitted to the breath test out of this particular police barracks. I learned of a problem with the particular test, which called the machine in to question. IN further searching for a reason why the machine incurred this particular problem I identified, I consulted with the former state chemist, who then in turn identified that the tolerance switch had not been turned back on at or after installation of this new machine, which could have been the cause or a contributing cause of the particular other problem I had identified. I was fully prepared and set to properly raise it at my client's Civil Suspension Hearing through evidence includnig documents realting to my client's breath test, the documents relating to installation and quarterly routine performance checks, and testimony of the chemist with whom I had consulted. However, before the hearing date, the case was settled with a plea agreement based upon other problem's with the prosecution's case. Once a case is settled, it is done. There is no further court proceedings in that case to raise any issue or introduce any evidence. And, once any case is settled, whether it be personal injury, criminal defense, or boundary disputes, there is no reason to commence or continue to argue positions and points with the opposing lawyer or party.
First question second - I do not know who, on behalf of hte State, knew that the tolerance switch was turned off. I knew it from the work that I performed. I cannot imagine the prosecutor's office knew it. I have high regard for the honesty of that county's prosecuting office, as I pretty much do for each of the various counties' prosecuting offices. Its one fo the great things about working in law in Vermont. If the prosecutor in that office knew about it, I have no doubt he would have disclosed it as requried by the rules of criminal procedure, adn per that office's own honesty. Having said that, I believe that somebody from the State's Department of Health knew the tolerance switch was off, or should have known it, for the following reason. The machine has a mechanism to detect "interfering compounds" other than alcohol which might be falsely read as alcohol by the machine. When first installing the machine, that mechanism is turned off via the tolerance switch. As installation and intial installation checks are completed, then the tolerance switch is turned back on during that process. Here, it wasn't. In other words, the installer (Mr. Harnois) who apparently turned off the tolerance switch did not turn it back on when he left. He knew it, or he should have known it if he just forgot, was derelict in his duties, or otherwise. The current Stae chemist (Ms. Boulduc) signed off on Harnois' installation paperwork. Well, if a person is in charge of reviewing and signing off, one should check the work. Lastly, Mr. Harnois generally performs the mandated quaterly (every 4 months) Routine Performance Checks ("RPC") on the machine. He did not check for or notice the tolerance switch was still off, yet signed off on the RPCs. Overall, it could be Harnois doesn't pay attention when installing the machines or when performing the Routine Performance Checks, and/or that the Department of Health chemist just signs off on paperwork without proper review of teh work, and/or somebody knew or should have known about the problem but just "worked" the paperwork. This much is certain: The tolerance switch was off and remained so, meaing the machine's ability to detect and feret out other compounds that the machine would mistakenly report as alcohol was disabled, meaning that every time that machine was used to test a person accused of DUI, that macine could have falsely reported a breath alcohol content.
If this was occurring for almost a year on this machine and people were losing their license and suffering other penalties and no one knew until me, the next question is whether this is going on with other breath testing machines in other police stations. Well, in Newport, I discovered a different problem with another test check of that machine, set out in the Routine Performane Check. I researched all the documents, consulted with the chemist, and detected the problem. The problem is detectable through two different colored lines on the document, and also due to a vary slight variation or vabration in one of the lines. Mr. Harnois did not detect the problem. It could be because he possibly had the particular document faxed to him, which would not show up as two different colored lines, and the vibration might be hard to read off a fax. I don't know. But I found it by travleing to the State's Attorney's office in Newport where copies of the documents are located, by painstakingly going over each one, adn then consulting with a chemist about the possible problem I identified. Harnois did not. Or, the other reason could be inattention to the details which I iedntified, which in my mind would indicate possible incompetance to what must seem like boring work. Both the current state chemist Boulduc, and one of the former stat chemists, both complained to Department of Health supervisors via email that Mr. Harnoise was either incompetant or dishonest or both. Those complaints went unheaded, the prosecution never disclosed those complaints because Mary Celotti at Department of Health buried those complaints by transferring those complaints into what she claims was a "personnel file" on Harnois, and now claims "personnel files" are confidential.

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