MSP lab

A Michigan State Police employee works analyzes a sample in the laboratory.

(Courtesy | Michigan State Police)

A calibration error in 4,001 alcohol cases resulted in inaccurate records in some of them, drawing criticism from defense attorneys, and forcing prosecutors to take a second look.

An examination of the cases, where testing was done at Michigan State Police labs, showed some results were incorrect by a range of -0.002 grams per deciliter (g/dL) to +0.004 g/dL, the June 30 letter signed by Acting Commander of the MSP Forensic Science Division, L. Scott Marier, states. The majority of the cases appear to be drunken driving.

The Wayne County Prosecutor's Office and Michigan State Police forwarded MLive a copy of the letter Monday, Aug. 22.

Read the letter

Upon finding the error in April 2016, MSP took immediate corrective action to determine the most appropriate measures to remediate the issue and ensure the incorrect calibration model could not be used again, Michigan State Police Spokeswoman Shanon Banner said.

"The integrity of our laboratory system is of the utmost importance..." Banner said, noting the corrective action. "We are confident in the amended results. The error that occurred was identified and corrected, and appropriate communication was made with our impacted stakeholders.

"Additional safeguards have been put in place to ensure this error does not happen again," she said.

Banner noted the error did not produce large differences in result figures but said it was important to issue amended reports on any case with a change in result.

Among the cases, 2,007 require corrections, while 1,994 do not, the letter states.

None of the cases originally reported near Michigan's legal blood alcohol limit of 0.080 g/dL have amended results that move them across the legal threshold in either direction, according to the letter, and none of the cases had to be reanalyzed because existing raw data was accurate and available.

Of the cases originally reported near Michigan's "Super drunk" legal alcohol limit of 0.170 g/dL, 18 have amended results that move them across the threshold, the letter states.

"These cases are potentially impacted, but the original error was in favor of the defendant," Banner said. "The individual would have still been over the drunk driving threshold of 0.080, but the original results report would not have put them at the super drunk threshold."

Four cases originally reported at exactly the threshold for people under 21, of 0.020 g/dL, when amended fall below it.

"I cannot tell you the status of these cases to know whether this affects any charging decisions, but this is the reason the prosecutor's offices were notified of the amended results," Banner said about the cases near the 0.020 g/dL threshold.

The letter states the inaccurate readings were due to an incorrect calibration model. A review indicated that the processing method being utilized on that

instrument had been incorrect since Dec. 14, 2015, the letter reads.

The incorrect calibration model was used on one of two machines, Banner said, used in blood alcohol cases. In these cases, from Dec. 14, 2015, to April 13, 2016, the labs used two machines, and used the average of both to tally the results.

Amended reports were to be issued to customer agencies and prosecutors for any cases where a change occurred "to ensure our customers have the most accurate results available," the MSP letter, dated June 30, reads.

The letter is on Michigan State Police - Forensic Science Division letterhead and bears the names of Gov. Rick Snyder and Col. Kristie Kibbey Etue near the top. It's addressed to an official at the Prosecuting Attorneys Coordinating Council, which forwarded the letter to prosecutors.

Neil Rockind

Neil Rockind of Bloomfield Hills-based criminal defense law firm, Rockind Law, complained that he did not learn of the error until Aug. 22, when the Wayne County Prosecutor's Office issued a news release.

He was still learning whether any of his clients' alcohol tests are among those with errors, Rockind said in a Tuesday, Aug. 23, statement.

"People's lives and livelihoods are at stake here," Rockind said, criticizing the delay in notifications. "I have argued for years against the rush to use what I call junk science in determining drug and alcohol cases. Now that the controlling authorities add credibility to my crusade, they go silent. It's not right."

He said the errors call into question the reliability of other MSP results as well.

"How can we trust the accuracy of other MSP test results following this debacle?

"Their credibility is shot and the suppression of the information shows their interest in protecting their own, while individuals subjected to faulty test results suffer the consequences," Rockind said. "This is going to make it very difficult for MSP technicians to testify with 100 percent assurance and authority moving forward."

Defense Attorney Steven Shelton of Shelton Legal Services in Fenton believes the labs that test samples to be used as evidence should not be run by the state police.

"It makes sense that the results should be objective," Shelton said. "I don't think you get objective results when you're sending your samples to a lab run by the very people trying to obtain a conviction."

There should be a firewall between the source of funding and the people who do lab work, he said.

Defense Attorney Mike Nichols of Nichols Law Firm in East Lansing said some of his cases are affected by the calibration error. He questioned how many times a major error might have occurred in the past and no one knew about it.

Kalamazoo County Prosecutor Jeff Getting said he received a copy of the MSP letter forwarded by the Prosecuting Attorneys Coordinating Council on June 30, and soon learned that about 35 cases in Kalamazoo County were among the miscalculated ones.

The office received amended reports from MSP, Getting said, and sent them on to those with affected cases, or to their attorneys.

None of the cases in Kalamazoo County crossed any legal thresholds, Getting said.

"I'm really proud of the Michigan State Police for taking corrective action and notifying us of the mistake they made," Getting said. "They've handled this in absolutely the right way by making us aware of the issue.

"Making sure they were transparent in this process, notifying us of the mistake, speaks very highly of the MSP lab and MSP in general," he said.

The Michigan State Police said they could not provide information about which counties had cases with updated results that crossed legal thresholds.

The Wayne County Prosecutor's Office determined that 89 of the 402 Wayne County cases on MSP's list are being or were prosecuted by the Wayne County Prosecutor's Office, noting that many alcohol-related cases are prosecuted by local city attorneys and could also be affected.

The Wayne County Prosecutor's Office said it received the letter describing the calibration error, but did not receive an updated report from MSP about local cases until it contacted the agency in August.

However, Banner said that on July 7, all police agencies and prosecutors in the state received individual amended reports via email for each affected case.

Wayne County Assistant Prosecuting Attorney Maria Miller said the office is working to notify city attorneys about the cases in Wayne County. She said she did not know the specific impacts to Wayne County cases as of Monday afternoon.