EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, June 3, 2009

Supreme Court Of Minnesota Throws Intoxilyzer 5000 In The Drunk Tank Based Upon Non-Production Of Source Code

I have written several previous posts about the problems associated with the Intoxilyzer brand of evidential breath alcohol-testing devices. In February, I did a post about Connecticut discontinuing its use of the Intoxilyzer 5000 in favor of the Alcotest 7110 MK III-C based upon its belief that the latter was a better technology. And last May, I did a post about

[a] ruling by a City Court judge in Tucson could [have] affected every alcohol breath test conducted in Arizona since December 1, 2006.  That was the date when Arizona adopted the Intoxilyzer 8000 machine made by CMI.  Apparently, defense attorneys in 49 DUI cases before Judge Thomas Berning  had asked for the Intoxilyzer 8000's source code used to create the machine's software.  In response, CMI agreed to make the source code available as long as defense attorneys agreed not to reveal it publicly, which defense attorneys agreed to.  According to a ruling by Judge Berning late last week, however, "Despite this, neither the state nor CMI has released the source code."  Instead, according to Berning, CMI came back with a counteroffer with "more onerous terms" that defense attorneys said were ethically problematic." Unsatisfied by CMI's bait and switch, Judge Berning tossed out the alcohol breath tests from the 49 DUI cases.  

Now, the Arizona ruling was important, but it was not hugely important because it involved the lesser used Intoxilyzer 8000 machine. Conversely, the Intoxilyzer 5000 machine I mentioned in my February post is the sobriety test most widely used by police agencies throughout the United States. But now, according to the Supreme Court of Minnesota, the same problem that the Arizona judge found with the Intoxilyzer 8000 machine applies to the Intoxilyzer 5000 machine.

In State v. Underdahl, 2009 WL 1150093 (Minn. 2009),   

Dale Lee Underdahl and Timothy Arlen Brunner...each sought discovery of the complete computer source code for the Minnesota model of the Intoxilyzer 5000EN in their separate driving while intoxicated (DWI) criminal prosecutions. The district courts in both cases ordered the State to produce the computer source code within 30 days, or the courts would dismiss certain charges and find that the breath test results were not admissible. The State appealed the discovery orders, and the court of appeals consolidated the actions and reversed both orders for production.

The Supreme Court of Minnesota thereafter granted the men's petitions for review, and that Court affirmed the court of appeals' ruling with regard to Brunner for reasons that I won't address here (You can find these in the opinion). With regard to Underdahl, however, after disposing of some preliminary issues, the Court found that Underdahl was entitled to the source code because he established that it was relevant and otherwise discoverable. According to the Court,

In his discovery motion, appellant Underdahl requested a copy of the Intoxilyzer source code or the exclusion of the breath test result if the State failed to produce the source code. Underdahl's motion contained no other information or supporting exhibits related to the source code. At an omnibus hearing on October 17, 2007, Underdahl argued that a jury in a DWI case is asked to determine whether a breath test result is valid, and the only way for Underdahl to challenge that validity "is to go after the testing method itself." The district court found that the jury instructions in a DWI case require the jury to evaluate the reliability of the testing method in determining the blood alcohol concentration level. Because the Intoxilyzer 5000EN provides the only evidence of alcohol concentration, the court found that evidence regarding the operation of that instrument is relevant.

Ths Supreme Court of Minnesota agreed with this conclusion and thus ordered the State to produce it. The problem? The State does not have the source code, or at least the complete source code. CMI has the source code, and it refuses to release the complete source code. The question begged by Underdahl is whether litigants in other states will be able to raise similar challenges and how those states and CMI will respond.



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