Court Suppresses Breathalyzer Results In 27,000 DUI Cases After Years Of Being Jerked Around By The State Crime Lab

(Mis)Uses of Technology

from the cheating-to-win dept

For more than a decade, the Massachusetts State Police crime lab hid information from judges, prosecutors, and criminal defendants. This is nothing unusual for this state and its crime labs. The words “Massachusetts,” “crime lab,” and “scandal” have gone hand-in-hand for years.

[Heads up, I will be using “state” to refer to the Massachusetts government in this post. I’m fully aware it refers to itself as a “commonwealth,” but come on: the state’s name is already too much typing.]

Drug labs staffed by technicians willing to either falsify results (rather than actually perform tests) or turn seized drugs into their own personal use stash have resulted in courts tossing nearly 30,000 drug convictions. Losing this many (unearned) wins must have hurt, but apparently state law enforcement has a taste for pain.

This state superior court decision erases 27,000 DUI convictions due to the government’s apparently unending misconduct. The State Police’s Office of Alcohol Testing (OAT) is at fault here. Class action suits prompted by faulty breathalyzers (both versions under discussion manufactured by Draeger) have resulted in a lengthy legal battle that dates back to 2013. For nearly that same amount of time, the state police’s lab has been doing everything it can to ensure those suing over the tests had no access to the information needed to prove their case. (via Short Circuit)

The upshot is in the headline. The decision [PDF] opens with the court noting it is deploying rare and extreme measures to right the wrongs this extension of law enforcement has created.

In this case we are asked to exercise our extraordinary superintendence powers under G. L. c. 211, § 3, in light of government misconduct involving the State police office of alcohol testing (OAT) and its use of the Draeger Alcotest 9510 breathalyzer device.

How rare and how extreme? (Citations removed for clarity and conciseness.)

The extensive nature of OAT’s misconduct, and the inability of the defendants in the consolidated cases challenging the reliability of the Alcotest 9510 device […] to receive a fair Daubert-Lanigan hearing […] have resulted in the violation of the right to due process for approximately 27,000 defendants. Accordingly, defendants who pleaded guilty or who were convicted after trial, and the evidence against whom included breath test results from the Alcotest 9510 device from June 1, 2011, through April 18, 2019, are entitled to a conclusive presumption of egregious government misconduct. They may proceed in motions to withdraw their guilty pleas, and motions for new trials, without having to establish egregious government misconduct in each case, […] and their breath test results are excluded from use at any subsequent trial.

That is huge. This gives these 27,000 defendants a head start should the state (unwisely) decide to re-prosecute these cases. The government will be assumed to be in the wrong and (likely) the only evidence presented is preemptively suppressed.

How did the state get itself into this mess? Well, it all starts with the OAT and its multiple decisions to hide information that might indicate the Draeger breathalyzers state cops deployed were faulty, in disrepair, or otherwise not as accurate as cops and prosecutors claimed in court.

The entire 46-page decision is worth reading. It explicitly details the many, many times the state police lab withheld records from defendants in violation of court orders. The decision also makes it clear these violations were deliberate and encouraged by lab officials who acted affirmatively to bury information that might make the machines look less than reliable.

But if you don’t have the time to read the whole thing, that’s why I’m here. I’m bringing the highlights!

First off, the lab was so interested in preserving the perception of breathalyzers as infallible it would deny prosecutors access to repair orders or failed certifications unless the prosecutors obtained a court order mandating release of this information. That’s INSANE. It’s unlikely many prosecutors sought this info because it wasn’t listed on the pre-printed form produced by the OAT. And even if they wanted this info, the lab’s supervising scientist, Melissa O’Meara, would do what she could to prevent the release of possibly exculpatory information.

In 2016, while dealing with a class action lawsuit possibly affecting thousands of DUI cases, a court ordered the OAT to turn over breathalyzer certification worksheets, as well as documentation on the certification process used by the lab. That’s where the fuckery began:

The crime lab’s attorney conveyed the substance of the court’s order to O’Meara, who coordinated the production of responsive documents. The attorney did not participate in the actual review, collection, or production of the documents. Ultimately, OAT produced a digital versatile disc (DVD) containing more than 2,000 certification worksheets and a few failed, incomplete worksheets. The crime lab attorney submitted the DVD to the court and represented that it contained “all of the worksheets for certification[,] as the [court] ordered all be turned over.” Unbeknownst to the prosecutors and defense attorneys, at that time, OAT had not produced all of the certification worksheets that had been ordered.

Once more information was obtained, the court ruled (in 2017) that tests performed between 2011 and 2014 were not “scientifically reliable.” It also discovered the lab had no standardized certification process, relying on “word of mouth around the lab” to prep machines for field deployment.

Litigation continued in this suit. More litigation ensued once it had been made public the breathalyzers weren’t trustworthy, at least not as tested and deployed by the state police.

What was observed in 2016 — the hiding of data and information by the OAT — continued. More highlights:

On August 2, 2017, during a hearing in the District Court on one such case, where an OAT employee had testified, the judge determined that OAT had failed to disclose exculpatory “failed certification” worksheets demonstrating that the particular Alcotest 9510 device at issue had failed certain certification tests. Contemporaneously, the Ananias litigation defendants received a response to a Freedom of Information Act request; the response contained a significantly larger number of the same type of documents that were ordered to be produced in the Ananias litigation prior to the Ananias I decision, indicating that OAT had failed to produce hundreds of similar failed worksheets that were considered to be exculpatory.

Having seen this, the judge ordered an investigation. Here’s how that went:

In an extensive report following a six-week investigation, EOPSS [Executive Office of Public Safety and Security] identified a history of intentional withholding of exculpatory evidence by OAT, blatant disregard of court orders, and other misconduct, all underscored by “a longstanding and insular institutional culture that was reflexively guarded.” The discovery practices that led to the withholding of exculpatory evidence predated the Ananias litigation.

And there was someone encouraging this: the “supervising scientist,” who (as you might infer from their title) was not a lawyer.

[T]he EOPPS report highlighted that OAT scientists responding to discovery requests were instructed not to provide failed worksheets. If a scientist included such a worksheet in the discovery package, O’Meara would insist that the failed worksheet be removed, because she considered it to be nonresponsive.

This led to the state stepping in and ordering the OAT to stop fucking around. It said all requests should be honored. It said prosecutors did not need a court order to obtain documents not included on the OAT’s request checklist. It ordered training of OAT employees to recognize exculpatory info and have it prepped for release. These efforts resulted in the OAT turning over “tens of thousands” of documents to prosecutors it had previously withheld.

The OAT tried to help prosecutors win by helping them cheat. Prosecutors love wins, so it’s likely at least some of them were aware the lab wouldn’t undercut their probable cause by calling into question the reliability of the breathalyzers. Whether or not state prosecutors were complicit, they’re now in possession of 27,000 losses. Maybe this might force them to be a bit more skeptical of their law enforcement collaborators. But chances are, given this state’s sordid crime lab history, no one putting people in jail is going to worry about anything as long as they still get to put people in jail.

Filed Under: breathalyzer, evidence, massachusetts, massachusetts state police
Companies: draeger

Breathalyzer Manufacturer Under Criminal Investigation For Falsifying Maintenance Records And Calibration Results

(Mis)Uses of Technology

from the watched-over-by-machines-of-questionable-aptitude dept

In 2018, a report came out that added even more doubt as to the reliability of breathalyzers. A number of factors — including incorrect calibrations and ambient air temperature — could turn innocent breath into guilty breath. Cops value breathalyzers since they’re easy to deploy and don’t have the warrant impediments of blood tests. But they’re often relying on faulty equipment.

The 2018 discoveries were reaffirmed in 2019 when a New York Times investigation uncovered more problems with breathalyzers. Equipment used in the field was rarely recalibrated and active chemical agents rarely replaced. One breathalyzer used by Michigan police was found to have rats nesting inside of it.

Faulty equipment is only one of the problems. The bigger problem is that it’s almost impossible to challenge in court. The private companies behind breathalyzer equipment have inserted themselves into court proceedings, claiming any examination of devices and source code could result in the exposure of proprietary information that (they imagine) could harm their market position and future sales.

Manufacturers are partially correct, but not for the reasons they’ve stated. The more these devices and their deployments are examined, the less they seem to be a gold standard for detecting intoxication. And now it’s the producers of this equipment that might be facing criminal charges, as Blake Montgomery reports for The Daily Beast. (h/t BentFranklin via the Techdirt chat window)

A major breathalyzer manufacturer is under criminal investigation for possible forgery. Police forces nationwide have been using the same company’s machines to turn alleged drink-drivers into convicted ones—seizing licenses, imposing fines, and, in some cases, imprisoning people.

The manufacturer is Intoximeters, which produces the Datamaster DMT used by the Michigan State Police. An investigation into the vendor uncovered a great deal of concerning misconduct, according to this report by The Detroit News.

State police director Col. Joseph Gasper said in a statement his department also has launched a criminal investigation into the alleged fraud by the St. Louis, Missouri vendor, Intoximeters, Inc.

“Based on new information learned over the weekend, the Michigan State Police … is aggressively investigating potential fraud committed by contract employees of Datamaster vendor, Intoximeters, and also moving today to take all 203 Datamaster DMT evidential breath alcohol testing instruments out of service until MSP can inspect and verify each instrument to ensure it is properly calibrated,” Gasper said.

State police will now have to use blood draws to obtain evidence of intoxication. This reverses the MSP’s first response, which was to perform recalibration of all the devices itself, rather than allow the apparently-untrustworthy employees of Intoximeters to do it.

This will likely trickle down to other Michigan law enforcement agencies currently using Intoximeters equipment. And it will trickle down to the state’s courtrooms where defense attorneys are expected to start filing challenges to current prosecutions and past convictions that relied on evidence obtained with these devices.

This may mean Intoximeters may finally have to divulge information it has so far successfully managed to keep out of court. This sort of reasoning isn’t going to fly if it’s proven the company’s employees falsified records.

[T]he company has resisted at least three Minnesota court mandates that police furnish the source code of its breathalyzer software to defendants, court records and interviews show. Instead of cooperating, Intoximeters has submitted documents saying it is open to police doing so—contingent on various conditions—and then opposed requests to actually follow through.

It’s an intentionally-designed catch-22. Law enforcement agencies can hand over the source code to courts, except they really can’t because their contracts with Intoximeter make it clear the source code belongs to the company, not the cop shop. The cops can’t turn over what they don’t own. And even when a court order directly targets the manufacturer, the Missouri-located company can dodge compliance –like it has in Minnesota — by being out of the court’s reach due to jurisdictional limits.

Preventing successful evidence challenges in court has allowed Intoximeters to operate with almost no accountability. And when that happens, things like the malfeasance currently under criminal investigation is pretty much guaranteed to follow. Every device maker bills its product as the evidentiary gold standard. But, as multiple investigations have shown, this standard is more tin than gold.

Filed Under: accuracy, breathalyzer, calibration, falsifying records

Company Says It's Built A Marijuana Breathalyzer, Wants To Roll It Out By The Middle Of This Year

(Mis)Uses of Technology

from the how-much-'yes'-is-actually-impairment-tho dept

Breathalyzers have been in use for more than 100 years at this point and we still don’t have all the kinks worked out. Testing equipment used by law enforcement frequently isn’t calibrated or maintained correctly. Some devices have been set up improperly, which leads directly to false positives when the tests are deployed.

Unfortunately, impaired driving isn’t going away. And neither are the tools cops like well enough to deploy in the field, but apparently not well enough to engage in routine maintenance or periodic quality control testing. This is already a problem for citizens, who can find themselves behind bars if the testing equipment is faulty. The problem is only going to get worse as marijuana legalization spreads to more states.

There’s currently no field test equipment that detects marijuana impairment. A company in California thinks it has a solution.

By mid-2020, Hound Laboratories plans to begin selling what it says is the world’s first dual alcohol-marijuana breath analyzer, which founder Dr. Mike Lynn says can test whether a user has ingested THC of any kind in the past two to three hours.

“We’re allowed to have this in our bodies,” Lynn said of marijuana, which became legal to use recreationally in California in 2018. “But the tools to differentiate somebody who’s impaired from somebody who’s not don’t exist.”

We won’t know if these claims are true until the testing equipment is deployed. And even then, we still won’t know if the machines are accurate or the drivers they catch are actually impaired. Marijuana doesn’t work like alcohol, so impairment levels vary from person to person. In addition, there’s no baseline for impairment like there is for alcohol. That will have to be sorted out by state legislatures before officers can begin to claim someone is “impaired” just because the equipment has detected THC. At this point, the tech pitched by Hound Labs only provides a yes/no answer.

There’s a very good chance this new tech will go live before the important details — the ones safeguarding people’s rights and freedoms — are worked out. The founder of Hound Labs is also a reserve deputy for the Alameda County Sheriff’s Office. And it’s this agency that’s been test driving the weedalyzer.

The Alameda County Sherriff’s Office agreed to test the Hound Breathalyzer in the field.

“What we’ve seen trending with the addition of the legalization of cannabis in California is that we are coming across more and more marijuana-impaired drivers,” said Alameda County Sheriff spokesperson Sgt. Ray Kelly.

“It’s not hard to determine if there is THC on someone’s breath if they have been smoking it,” Kelly said. “It’s when they’re ingesting it through edibles, which have become much more popular. That’s extremely valuable to law enforcement.”

These tests are completely voluntary and drivers who submit to them won’t be criminally charged even if the device says they’re under the influence. But in a few months — if everyone agrees they’re good enough to be used on civilians — the tests will no longer be voluntary and the consequences will be very real.

Impaired driving that doesn’t involve alcohol is going to increase with the legalization of marijuana. But this new tech should be greeted with the proper amount of skepticism. Breathalyzers that detect alcohol have been around for decades and are still far from perfect. A new device that promises to detect recent marijuana use just because researchers say consumption can be detected for up to three hours shouldn’t be treated as a solution.

The device is stepping into a legal and legislative void with no established baseline for marijuana “intoxication.” It can only say it does or does not detect THC in a person’s breath. It can’t determine whether the amount is a little or a lot, and no one has any guidance stating how much of a THC concentration should be considered impairing or illegal. But it’s pretty much a given these will hit the roads before the law is ready for them, and that should concern drivers in every state where marijuana is legal.

Filed Under: breathalyzer, false positives, field tests, marijuana, police, testing
Companies: hound laboratories

Boys In Blew: Australian Cops Caught Faking 258,000 Breathalyzer Tests

(Mis)Uses of Technology

from the blowing-on-the-nipple-of-what's-easy dept

Reason number a billion why quotas for law enforcement are a bad idea: they encourage the worst behavior. The Victoria (AUS) Police recently performed an internal investigation into breathalyzer tests deployed 17.7 million times over the last 5-½ years. Prompted by an “anomaly” in the data, investigators uncovered something horrific and ridiculous all at the same time: Victorian cops blow… thousands of times a year.

Victorian police faked more than a quarter of a million roadside breath tests in what appears to be a deliberate ruse to dupe the system.

An internal investigation has found 258,000 alcohol breath tests were falsified over 5½ years, The Age has learned.

If there’s an upside (and is there?), it’s that it did not result in false arrests. These weren’t faked tests used to prosecute people for driving under the influence. These were tests “performed” to meet quotas given to officers by supervisors. Never underestimate the reluctance of many workforce members to, you know, actually perform work.

Police believe officers may have been blowing into the breathalysers themselves, most likely due to laziness and the need to meet targets.

The anomaly first spotted by the Transport Accident Commission was the lack of a credible gap between test results. In most cases, several minutes at the very least would elapse between tests of motorists. Paperwork needs to be filled out, drivers need to be conversed with and/or cited, etc. That gap wasn’t present in hundreds of thousands of tests which were performed in batches with no time gap between them. The only explanation? Police snow blow jobs.

[T]he faked tests were occurring one after the other.

This suggests two things: an officer is either placing a finger over the straw entry hole or they were blowing into the straw themselves.

Upside: faked negative tests don’t result in false arrests or prosecutions. Downside: everything else. The Victorian Police have proven a quota system doesn’t work. The officers have proven they can’t be trusted to do their jobs. The latter is at least as significant as the quota issue. If officers are too lazy to hit quotas on breathalyzer tests, what other corners are they cutting while chasing numbers — whether it’s traffic citations or closing investigations?

The investigation does prove at least one thing: officers are abusing the trust placed in them, both by their superiors and the general public. The only factor that appeared to deter test fakery was direct oversight.

It was not a practice found at supervised drug and alcohol bus testing sites.

What will happen to all these lazy officers who abused the trust placed in them? Probably not much of anything. Despite this having been made public, accompanied by statements from police officials confirming the accuracy of the report, government officials further up the ladder — the oversight — appears to be withholding judgment until they are “comprehensively briefed.” If heads roll, it will hopefully start up top and continue through the rank-and-file.

But heads won’t start rolling. The culling will probably target the inanimate objects first. The quota system is effectively dead. It will be the scapegoat sacrificed so lazy cops can keep their jobs. It definitely should go, precisely because it encourages this sort of behavior. But it shouldn’t be the only thing on the chopping block as the Victorian police seek to bring an end to this unflattering news cycle. Laziness is ingrained behavior and faking breath tests may prove to be the tip of the iceberg. Everything still underwater potentially contains serious civil liberties violations. The sooner the Victorian Police digs into officers’ behavior in all areas of their jobs, the sooner it can began regaining the public’s trust.

Filed Under: australia, breathalyzer, fake tests, law enforcement, police, quotas

Eating Ice Cream Causes False Breathalyzer Positive Test Result

(Mis)Uses of Technology

from the oops dept

Paul Brinker writes in to let us know of an odd case in Australia, where a man who had a breath-testing device installed in his car (presumably due to previous DUI convictions) asked a court to remove it after he was unable to start his car one day after eating some ice cream. Curious as to whether or not ice cream could actually set off a breathlyzer-type device, the court ordered a test, whereby the man breathed a 0.00 blood-alcohol level, then took a few bites of the same exact ice cream (Bubble O’Bill, for those wondering) and was then tested again, showing a 0.018 blood-alcohol level. The guy won the case, and was allowed to remove the device. While I’m all for getting drunk drivers off the road, it is at least somewhat troubling that just a few bites of a non-alcoholic food could lead to false positives on such testing devices.

Filed Under: australia, breathalyzer, false positive, ice cream

Breathalizer Source Code Ruling Upheld

Legal Issues

from the another-good-decision dept

A few years back, in a high profile series of lawsuits, a lawyer representing some folks accused of drunk driving asked the manufacturer of a breathalyzer testing machine for access to the product’s source code, so experts could review it to make sure it functioned properly. The company refused, citing trade secrets. However, a judge noted that this went against the defendants’ rights to a fair trial, and said that the breathalyzer evidence had to be thrown out. Slashdot points us to the news that an appeals court has upheld the ruling noting that due process outweighs the company’s trade secrets. While I have no problem with prosecuting drunk drivers, I do agree that the evidence should be solid — and not allowing the source code to be examined is a problem.

This is, in many ways, similar to the issue with e-voting machines. Considering the gov’t is making important decisions based on these machines, it seems only reasonable that the source code should be at least reviewable to investigate the quality of the machines. Though, it strikes me as odd that we’re even more stringent with Breathalyzers than with e-voting machines. Where’s the similar ruling about e-voting machines and the availability of their source code?

Filed Under: breathalyzer, openness, source code