[D]evices that test the level of alcohol in suspected drunk drivers were knocked out statewide for about 24 hours this week due to a problem updating software.
How many, if any, drunken driving arrests will be affected is still unclear.
An email was sent out Friday morning by the state’s Defender General’s Office to its listserv of attorneys with the subject line, “Alert for DUI Defenders: Vermont DMT Malfunction Wednesday and Thursday.”
DataMaster DMT is the name of the machine law enforcement uses to obtain the evidentiary breath samples.
The email alerted the defense attorneys that Dr. Trisha Conti, director of the Vermont Forensics Laboratory in the Department of Public Safety, had “confirmed” that between 2 p.m. Wednesday and noon Thursday “all Vermont Datamaster devices were (or should have been) inoperable.”
The laboratory uploaded new software to the machines on Wednesday, the alert added, but the update contained a glitch that “prevented the simulator from communicating with the rest of the machine. As a result, the DMTs should have alerted the officers that the machines were inoperable.”
Later, at around 1 p.m. Friday, Conti sent a memo to prosecutors, the defender general’s office and law enforcement officers with the subject line, “DMTS Out of Service.”
According to that memo, around noon Wednesday, the forensic laboratory “pushed out” a software update to all DataMaster machines around the state, except those in Brighton, Canaan, Richford and Rochester.
“Due to an incorrect simulator model assignment in the software, there was a disruption in communication between the DMT and the simulator. As a result, the DMTS were inoperable,” she wrote.
The forensic lab realized what was going on Wednesday evening and worked with the software manufacturer to get the system back online by noon the next day, the memo said.
Conti added in the memo that because the machines were not able to pass required internal checks, no tests could be performed during that down time. Conti could not immediately be reached Friday for comment.
Vermont State Police Lt. John Flannigan, commander of agency’s safety programs, said Friday afternoon that a search of the department’s records management system and press releases did not show any DUI arrests during the time the DataMaster machines were down.
He added that “because it is very recent,” there may be records that haven’t yet been coded and processed. The check also only involved cases handled by state police, not local or county law enforcement agencies.
Defender General Matthew Valerio said Friday he hadn’t heard of any cases affected by the outage.
He said that prosecutors can prove cases without DataMaster results, relying on other evidence, including the “clinical observations” of officers and any video that may exist.
“The DataMaster has been the technical crutch that the prosecution has relied upon for decades at this point,” he added. “We’ve always had concerns about the DataMaster from the day they came in, but legislatively they’ve pretty much eliminated our scientific challenges as a matter of law.”
Washington County State’s Attorney Rory Thibault said early Friday afternoon he hadn’t yet heard of the problem with DataMaster machines.
The prosecutor agreed with Valerio that cases can go forward without the test results, pointing out that in some instances a defendant refuses to take one.
“In those cases we can rely upon the testimony of the officers, and often the video accompanying — either body camera or cruiser video of someone — demonstrating their performance on field sobriety exercises,” he said.
“As with all cases,” he added, “the circumstances always matter, and the absence of an evidential test doesn’t necessarily mean that the state will be precluded from prosecuting.”
