Here's the latest on the drunk-driving case that's sending shock waves through Vermont's alcohol-testing program.
After questioning numerous state officials under oath last month, criminal defense attorney David Sleigh has asked a judge to toss the breath-test evidence against a client facing his fifth DUI. Sleigh argues the state officials' testimony proves the breath-testing equipment Vermont uses is unreliable and that the state health lab's quality-assurance standards are a joke.
But wait, there's more!
The day after Sleigh filed his motion, two of the three co-defendants in this case were offered, and accepted, plea deals that bargain the charges down to negligent operation. That lesser charge comes with a 30-day license suspension and no conditions for reinstatement, compared to a 90-day suspension and mandatory treatment and counseling had they been convicted of DUI.
One of those co-defendants is an assistant attorney general of Vermont, who had allegedly almost three times the legal limit of alcohol when Northfield police busted him last year. Keith Aten, 51, who works in the civil division of the Office of Attorney General William Sorrell, was stopped by Northfield police after a convenience clerk refused to sell him beer on August 13, 2010, according to court records.
In his report, Northfield Police Officer Charles Satterfield wrote: "I was getting a cup of coffee when I heard the clerk ... tell a male that he couldn't purchase beer. When I went to pay for the coffee I asked why the sale was refused, he looked old enough, and she said he was way too intoxicated."
When the officer went outside to the parking lot, Aten was backing up his Toyota Camry. Aten told the officer he had had one beer. But when he blew into a roadside breathalyzer, his blood-alcohol registered .224. Back at the police station, Aten blew into the DataMaster DMT breath tester — the test that's admissible in court — and registered a BAC of .224. The legal limit is .08. Aten was charged with DUI.
Aten had a prior citation for DUI on his record in 2001, the police officer wrote, but the charge was reduced to an "Alcohol While Driving" conviction.
Aten did not respond to requests for comment and Sleigh (pictured) says he advised his client not to discuss his case with the news media. (As an aside, Sleigh and Aten have gone head-to-head in the past, in a case dealing with loopholes in the state's sex-offender registry. Asked about that, Sleigh remarked, "It's a small state.")
This otherwise-routine DUI case snowballed after two chemists employed in the Vermont Department of Health Laboratory provided statements alleging that a colleague, the lab's electronics technician, manipulated breath testers into "passing" routine performance checks and "spiked" the machines with inappropriate compounds. The lab tech was cleared following an internal Health Department review that concluded the chemists' claims were without merit.
Now, Sleigh has sworn testimony from key players in the health lab's alcohol-testing program and is using that to argue the lab's quality-assurance standards are not viable, and that the breath tests used to bust his clients must be tossed as a result.
Sleigh's central argument is that the state's breath-testing instrument, the DataMaster DMT (pictured below), was never approved by the Vermont Commissioner of Health and therefore should not be admissible evidence in court. Vermont used the DMT's predecessor, the BAC DataMaster, for two decades before upgrading to the new instruments in 2008. But Sleigh, using testimony from lab insiders, says the new machine utilizes "completely different electronics" and runs on "an entirely different computer operating system."
Vermont Department of Health regulations say new devices must be approved by the commissioner to be valid for evidential use. Sleigh claims that never happened, either under current Commissioner Harry Chen or his predecessors in the Douglas administration.
Sleigh and his co-counsel in the case, Burlington criminal defense attorney Frank Twarog, won the right to take sworn depositions from state health lab employees in Burlington on May 25. Transcripts of those depositions became public this week when they filed the motion to exclude the breath-test evidence.
Using that new testimony from health officials, Sleigh argues the state deployed the new DataMaster DMTs into police agencies around the state before they were ready for prime time. A full year after the first DataMasters were put into service, mechanical and software problems were so frequent that the lab's two chemists — Amanda Bolduc and Darcy Richardson — recommended ditching the DMTs and switching to a different brand of breath tester. Lab higher-ups overruled that recommendation in favor of staying with the DataMaster, which is the only brand of breath tester that Vermont courts have accepted for evidentiary use.
Meanwhile, the chemists made written statements to the lab director alleging unethical work habits by a colleague, lab technician Steven Harnois. According to Sleigh's filing, the investigator assigned to probe those allegations was never provided with a copy of those written complaints and "confessed he has no meaningful familiarity" with ISO 17025, "the main standard for both management and technical aspects of testing laboratories."
The lead prosecutor in the case, Washington County State's Attorney Tom Kelly, tells Seven Days that the state will oppose Sleigh's motion to exclude the breath test and challenge his assertions about the integrity of the state's alcohol-testing program.
File illustration by Todd Rogers
File Photo of David Sleigh by Andy Duback
File photo of DataMaster DMT by Matthew Thorsen
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