Vermont DUI convictions in jeopardy as breath-test program faces challenges

Associated Press / May 16, 2011

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MONTPELIER — A mistake in the software setup on a breath analysis machine and whistle-blowers’ 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 was not 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 did not 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 is 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 problem 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.

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.

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 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, will not say how many cases statewide may end up being affected.