**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.
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.
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.
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.