Faulty breath test may have compromised DWI charges in at least three counties

DULUTH – Dozens of alcohol breath tests conducted by law enforcement in at least three Minnesota counties may have been compromised because of operator error, state officials said.

More than 70 tests in Aitkin County, 45 in Winona County and 13 in Chippewa County incorrectly used a DataMaster instrument to test blood alcohol content over varying periods of time, according to the Minnesota Bureau of Criminal Apprehension (BCA). A control piece of equipment was installed incorrectly.

In at least one case, fourth-degree drunken-driving charges against a man were recently dismissed by the Aitkin County Attorney’s Office because of the mistake. In court documents, County Attorney James Ratz said the error compromised the “validity and accuracy” of the test results.

“The Aitkin County Attorney’s Office has reviewed your case and has determined to dismiss your case in the interest of justice,” he wrote.

Twin Cities-based defense attorney Chuck Ramsay said he noticed the inconsistency for two of his clients who were given breath tests and charged in Aitkin County.

“I looked at the data and realized something was wonky there,” he said.

It’s one of his clients who had his charges dismissed, though Ramsay said he believes there are grounds to toss all of them.

Ramsay said he believes Hennepin and Olmsted county officials are aware of the bad data. Efforts to reach prosecutors and sheriffs in those counties Thursday were not successful.

When people take a breath test and test over the legal limit, they typically face two charges: one for the high blood alcohol concentration (BAC), the other for impaired driving. While prosecutors might not be able to use a BAC in court because of the compromised instruments, they might still be able to make a case for impaired driving, according to Debbie Lang, a partner at Bloomington-based Halberg Criminal Defense. She doesn’t currently have any cases affected by the bad data, she said.

But unless the driver engaged in “extremely egregious” conduct behind the wheel, it might be hard to make that case, Lang said.

“It’s definitely going to result in the dismissal of a lot of cases,” she said.

According to the BCA, after Ramsay discovered the error in late August, the instrument in Aitkin County was not used again until the error was corrected. Law enforcement agencies across the state were notified.

Law enforcement officers use a portable breath test in the field and a DataMaster test at headquarters.

In Winona County, from mid-June to mid-September, a certified officer used a portable control cylinder in the DataMaster instrument.

The Winona County Attorney’s Office said any pending cases involving tests during that time will be dismissed and anyone who pleaded guilty during that time should contact the office to have the conviction overturned, according to Sheriff Ron Ganrude.

“We’re taking it very seriously,” Ganrude said.

He said new protocols are in place to prevent a recurrence, including keeping the control cylinders in different places and limiting who has access to the instruments.

Aitkin County Sheriff Dan Guida said the County Attorney’s Office sent out a letter to all attorneys and their clients who had taken a breath test during the yearlong period in which the data was potentially compromised. A dozen of the cases were still open, he said. In the rest of the 30-some cases, the person had entered a plea or been sentenced.

“It isn’t as easy as dismissing these cases,” Guida said. “People drunk driving need to be held accountable.”

It’s not the first time alcohol tests have come under scrutiny across Minnesota. In the mid-2000s, defense attorneys questioned the veracity of the Intoxilyzer 5000, a blood alcohol test that preceded the DataMaster — which affected about 4,000 people accused of drunken driving from 69 counties.

A Scott County District Court judge eventually issued a 122-page ruling saying the controversial device was reliable. The device had source code errors, he wrote, but they didn’t impair the “accuracy, validity or reliability of results.”

The accused drunken drivers were sent back to court.