Vermont’s DUI breath testing program under fire

Posted May 16, 2011, at 9:52 p.m.

MONTPELIER, Vt. — A mistake in the software set-up on a breath analysis machine and whistleblowers’ complaints about unethical lab work threaten dozens of drunken-driving prosecutions in Vermont.

At issue are breath tests performed by a DataMaster DMT machine at a Vermont State Police barracks that authorities say wasn’t set up properly. Amid a broadening inquiry by two defense attorneys, dozens of criminal convictions could be reopened and a handful of civil license suspensions are being overturned.

Hundreds of other cases since 2008 could be in jeopardy because of problems with the state Department of Health’s maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving.

The state Health Department, which is being stripped of the breath-testing program, says the machines didn’t give any erroneous readings. At issue, officials say, is human error that resulted in one machine at a Vermont State Police barracks operating for almost a year without a self-check function that assures it’s working properly.

“People can go to jail and lose their driver’s licenses based on this science,” says George Ostler, a defense attorney in Norwich who has clients who were prosecuted using test results from the machine. “When they don’t maintain the machines like this, it’s disturbing.”

The machines, which cost about $6,150 each, use infrared light to detect the presence of alcohol. Each machine is supposed to conduct a self-check to measure the alcohol content of a control sample before it analyzes a subject’s breath.

The issue with the one at the state police barracks in Royalton is that two state Department of Health chemists failed to activate the self-check function, called a tolerance detector, before it went into use in May 2010.

Now the results of all the tests it conducted are suspect and prosecutors are sending out notices to defense attorneys and drivers who represented themselves in civil or criminal proceedings that the breath-test data in their cases may have been compromised.

“It is frustrating to learn that through human oversight, these instruments were not set up properly and that potentially we took advantage of evidence that should not have been available to us,” said Windsor County State’s Attorney Robert Sand, whose office is seeking to vacate 33 driver’s license suspensions.

Prosecutors in Windsor and Orange counties say they have no plans to seek the dismissal of convictions obtained using testing from that DataMaster because there was enough other evidence of impairment to convict.

And despite notices to affected parties, no one has indicated a desire to reopen a case, according to Sand and Orange County State’s Attorney Will Porter.

In Orange County, up to 20 people were convicted in drunken-driving cases based on the machine’s results and 15 to 20 cases are pending. Porter says those prosecutions will proceed, relying on other evidence.

“We are trying to get to the bottom of it and determine the extent of the problem and how it affects currently pending cases,” he said.

In Orleans County, the failure of a DataMaster in a routine performance check last October has led to dismissal of at least four driver’s license suspensions.

Stuart Schurr, traffic resource safety officer for the Department of State’s Attorneys, won’t say how many cases statewide may end up being affected. David Sleigh, a defense attorney involved in some of the DUI cases, says hundreds, dating to 2008.

“I will say what I have to, not in the court of public opinion, but in a court of law,” Schurr said. “You may have to sit back and wait for this to be fully litigated before both sides come out.”

State officials acknowledge that human error is to blame. But they say the machine never gave erroneous readings.

“The thing about the DataMaster instrument, in terms of sophistication, is (that) it virtually always, if it gives you a result, it gives you an accurate result,” said Dr. Harry Chen, the state health commissioner. “It will not … give you an inaccurate result. So the results are still valid and accurate, despite the fact that this switch was turned off.”

The explanation doesn’t wash for Sleigh, who helped detect the problem through his work on behalf of five drunken-driving suspects.

Sleigh and fellow defense attorney Frank Twarog obtained copies of complaint letters written last year by two Department of Health whistleblowers who said sloppy and unethical work by a lab colleague had been reported but unaddressed.

First reported on by the Burlington weekly Seven Days, the letters written by chemists Amanda Bolduc and Darcy Richardson were obtained by The Associated Press through a Public Records Act request.

The Health Department withheld from The AP 16 emails dealing with the DataMaster issue. Assistant Attorney General Margaret Vincent asserted attorney-client privilege or “attorney work product” as the reason.

The whistleblowers’ complaints allege that laboratory technician Steven Harnois tampered with DataMaster machines to get them to pass routine performance checks and kept records so badly that it compromised the chemists’ ability to testify in court about readings.

“I have concerns in his level of integrity and ethics,” Bolduc said. “These concerns have been brought to the attention of the program chief on numerous occasions, and still the problem exists,” she wrote. Whenever she raised concerns, her boss retaliated against her for it, she said.

Richardson said in her complaint that Harnois doesn’t understand how the machine works and that paperwork on certifications of the machines had been lost in some cases and filled out incompletely in others.

“Myself and Amanda Bolduc have raised these issues repeatedly but nothing has changed nor does Mr. Harnois seem to understand that changing methodology is inappropriate just to get an instrument to pass.”

Harnois, who still works at the lab, didn’t respond to an email message seeking comment for this article. Chen said the Health Department’s internal investigation found no tampering on DataMasters and no evidence of wrongdoing by Harnois.

Ironically, it was Bolduc and Richardson who signed off on the Royalton barracks DataMaster’s certification despite the fact that the tolerance check wasn’t turned on.

Sleigh says that under Vermont law, the state Department of Health had an obligation to speak up about what it knew of problems with documentation.

“The Health Department had actual knowledge of the failings of these machines and the failings of their documentation for a period of years and did not inform the state’s attorneys about those, so the state’s attorneys in turn could not meet their obligations to inform defendants of the exculpatory evidence,” said Sleigh.

Last month, the state decided to move the breath testing function from the Health Department’s lab to the state Department of Public Safety’s lab, a change that has been discussed for years but never made until after the current problems surfaced.

“It definitely needs to be revamped,” said Richardson, 33, of Milton, who left the Health Department last September. “I’m cautiously optimistic about it going to DPS, because they’re used to dealing with evidence more than the Health Department is.”

What’s unknown, for now, is the extent of harm suffered by drivers prosecuted with information from the suspect machines.

“What about the guys who lost their license civilly, who we are now agreeing to reopen and retroactively enter judgment for them?” Sand asks, rhetorically. “What about the deprivation they’ve suffered? All I can say is that we have tried in the most fair way we can to adjust for and accommodate for the shortcomings revealed to us in how the Department of Health installed these instruments.”

 

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