Miller v. Gettel

Decision Date16 December 2021
Docket NumberCase No. 21-cv-10175
Citation575 F.Supp.3d 846
Parties Kerry MILLER, Plaintiff, v. Gina GETTEL, et al., Defendants.
CourtU.S. District Court — Eastern District of Michigan

Zachary T. Runyan, Jonathan R. Marko, Marko Law, PLLC, Detroit, MI, for Plaintiff.

Elizabeth M. Watza, Michigan Dept. of Attorney General, State Operations Division, John G. Fedynsky, State of Michigan Attorney General's Office, Complex Litigation Division, Lansing, MI, for Defendants Gina Gettel, W. Mark Fondren.

Christopher J. Raiti, G. Gus Morris, McGraw Morris P.C., Troy, MI, Jonathan R. Shulan, Mikayla Travers, Armstrong Teasdale LLP, St. Louis, MO, Richard L. Scheff, Armstrong Teasdale LLP, Philadelphia, PA, for Defendant Intoximeters, Inc.


Plaintiff Kerry Miller initiated this civil rights action on January 26, 2021 against Defendants Sergeant Gina Gettel, former Sergeant Perry Curtis, W. Mark Fondren, Intoximeters, Inc. and three Doe Intoximeter employees. ECF No. 1. Specifically, Plaintiff alleges Defendants violated his due process rights by fabricating breathalyzer evidence against him, using said evidence to initiate criminal proceedings against him and obtain a guilty plea, and failing to train or supervise. Id. at PageID.2.

Presently before the Court are Fondren and Gettel's Motion to Dismiss in Lieu of an Answer (ECF No. 31) and Intoxmieters’ Motion to Dismiss (ECF No. 33). The matters are fully briefed, and a hearing was held on December 13, 2021. For the following reasons, the Court will GRANT IN PART AND DENY IN PART Gettel and Fondren's motion and GRANT Intoximeters motion.

A. Factual Background
1. Michigan State Police's History with DataMaster DMT

The DataMaster DMT is an infrared evidential breath alcohol test instrument. ECF No. 1, PageID.6. Since at least 2011, Michigan prosecutors have used DataMaster DMT results as the main piece of evidence to prove guilt for operating a motor vehicle while intoxicated ("OWI") charges. Id.

Defendant Sergeant Curtis oversaw the Michigan State Police ("MSP") Breath Alcohol Program and evaluated the DataMaster DMT for use in the State of Michigan prior to his retirement from the MSP in 2018. Id. at PageID.3.

On September 1, 2018, the State of Michigan entered a three-year contract with Defendant Intoximeters that included regular maintenance and certification of the DataMaster DMTs ("Service Contract"). Id. at PageID.6. Defendant Sergeant Gettel, Michigan's Manager for the Breath Alcohol Program, was responsible for monitoring and coordinating the day-to-day activities of the Service Contract. Id. Subject to Michigan's (through the MSP's) approval, Intoximeters was required to hire a minimum of three certified DMT service technicians to handle the day-to-day operations of the Service Contract (the Doe Defendants). Id. Intoximeters was also required to provide DataMaster DMT training to MSP staff and designate a customer service representative. Id.

In January 2019, the MSP began efforts to "bring Michigan's evidentiary breath alcohol testing program into alignment with forensic laboratory standards and work toward national accreditation." Id. at PageID.7. The MSP hired Defendant Fondren to fill the newly created Breath Alcohol Technical leader role within the Forensic Science Division. Id. In April 2019, the MSP implemented additional workflow requirements for Intoximeters to ensure compliance with state law and administrative rules and move toward accreditation. Id. According to the MSP's website, these additional controls enabled the MSP to detect problems with the DataMaster DMTs, such as the fact they were not being maintained or certified by the Doe Defendants. Id. At this time, the MSP did not commission an audit of Intoximeter's work. Id.

Instead, at the MSP's request, a Senior Relations Analyst from Michigan's Department of Technology, Management and Budget's Central Procurement sent Intoximeters a letter on August 9, 2019 stating, inter alia : "Since contract inception, there have been substantial performance issues related to timely certification of Datamaster [sic ] Instruments and failure of your employees to comply with basic security protocols." Id. at PageID.7-8. The letter expressed the MSP's "significant frustration" and warned any of the issues identified in the letter constituted a material breach of contract that could result in termination. Id. at PageID.8. These issues included sixty instances of failing to perform certifications, incorrectly recording important elements during instrument checks, and sharing instrument passwords with jail staff. Id.

Intoximeters responded with a corrective action plan ("CAP") on August 21, 2019. Gettel and Fondren, among others, decided to accept the CAP and not terminate the contract. Id. However, throughout the rest of 2019 and January 2020, the "MSP became aware of repeated instances of unlawful conduct regarding the maintenance and certification of DataMaster DMTs in or by at least seven law enforcement locations." Id. This conduct included incomplete documentation on alleged work performed on DataMaster DMTs and failures to identify, address, or fix malfunctions with DataMaster DMTs. Id.

After the MSP discovered more false paperwork related to a DataMaster DMT at the Alpena County Sheriff's Department, the MSP issued a stop work order with Intoximeters on January 7, 2020. Id. at PageID.10. The MSP issued a statement indicating, inter alia , it was investigating potential fraud committed by Intoximeters employees. Id. This investigation was ongoing when Miller filed his Complaint. Id. at PageID.11. By the time Defendants Fondren and Gettel filed their Motion to Dismiss two of the Doe Defendants had been criminally charged. ECF No. 31, PageID.190. One pleaded guilty and the other's case was pending at the time of filing. Id.

2. Miller's Arrest, Prosecution, and Plea

In the afternoon on March 10, 2019, Plaintiff Miller was sitting in his vehicle in a McDonald's parking lot in Tecumseh, Michigan when a police officer approached and asked if he had been drinking alcohol. ECF No. 1, PageID.11. Miller stated he had consumed two beers earlier that day but had not drunk any alcohol in the preceding two-to-three hours. Id. Plaintiff alleges the officer said he did not smell alcohol prior to turning on his body-worn camera and then stated he smelled alcohol on Miller's breath after the camera activated. Id. The officer administered a preliminary breathalyzer test while Miller was still seated in his vehicle and administered a vision test after Miller exited his car. Plaintiff explained he could not see well because he did not have his glasses and the officer responded, "You failed the test anyway." Id.

Miller was arrested and taken to the Tecumseh Police Department where he was given a DataMaster DMT breathalyzer test, the result of which was 0.13% Blood Alcohol Concentration ("BAC"). Id. at PageID.12. Plaintiff was required to take another test before leaving the county jail approximately three and a half hours later. Id. He overheard law enforcement personnel comment that test resulted in a 0.2% BAC. Id. On March 25, 2019, Miller was criminally charged with OWI in violation of Mich. Comp. Laws § 257.625(a)(1). Id. He retained counsel and paid $1,000 in attorney fees. Id. Plaintiff ultimately pleaded guilty on May 14, 2019. Id. Pursuant to his plea agreement, Miller had to attend counseling, attend Alcoholics Anonymous meetings, abstain from alcohol or drugs, pay fines and costs of approximately $1000, take twice daily breathalyzer exams for about four months, complete 240 hours of community service, and serve eighteen months of probation. Id.

3. Discovery of the Defect with Miller's DataMaster DMT Exam

On January 13, 2020, Defendant Gettel sent the Lenawee County Prosecuting Attorney a letter identifying twelve OWI cases affected by the dysfunctional DataMaster DMT "located at the Tecumseh Police Department between February 15, 2019June 28, 2019." Id. at PageID.13. Gettel explained the tests for those twelve OWI cases "did not pass all required checks during the onsite 120-day inspection that was completed on February 15, 2019." Id.

Miller's case was identified in the letter. Id. He and the eleven other affected individuals were arrested after that failed inspection on February 15, 2019. Id. Therefore, Plaintiff alleges "Defendants knew at the time of these arrests that the DataMaster DMT (instrument no. 300341) had not passed certification." Id. Despite this, "Defendants knowingly used the results of the BAC tests performed by a dysfunctional DataMaster DMT as a basis for arrest and prosecution of the Plaintiff, and the eleven other individuals listed on the January 13, 2020, letter." Id.

On January 16, 2020, the Honorable Laura J. Schaedler signed an Order of Nolle Prosequi regarding Plaintiff's OWI conviction "due to Datamaster [sic ] issue." Id. Plaintiff was reimbursed some but not all the costs he paid and believes he is still out of pocket approximately $1,764 in costs for attorneys’ fees, counseling costs, and breathalyzer tests he paid for in connection with his arrest and prosecution. Id.

B. Procedural Background

Plaintiff alleges Defendants violated his

due process rights by fabricating evidence relating to the calibration, recalibration, accuracy, and/or certification of DataMaster DMT evidential breath alcohol testing instruments ("DataMaster DMTs") used by the State of Michigan to determine the blood alcohol concentration ("BAC") of people suspected of operating a motor vehicle while intoxicated ("OWI") in violation of Mich. Stat. § 257.625 ; relying on this falsified evidence to initiate criminal prosecutions against Plaintiff; failing to

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