Last Thursday, on July 16, U.S. District Court Judge Donovan Frank published his opinion approving a settlement between the State of Minnesota and CMI, the Kentucky-based company that manufactures the Intoxilyzer 5000EN — the machine used by the state to administer breath tests to measure the blood alcohol concentration of suspected impaired drivers.
For over three years now, criminal defense attorneys have been arguing that without access to the source code (the computer programming that shows how the Intoxilyzer takes a breath sample and turns it into a blood alcohol concentration reading), there is no way to determine if the Intoxilyzer breath test results are accurate. If the results are potentially inaccurate, the argument concludes, then the results should be suppressed evidence, and not admissible in court to prove drunk driving. Defense attorneys made many motions in courts throughout the state asking judges to either grant their discovery requests and force the prosecution to hand over the source code, to test the accuracy of the results, or suppress the results.
Makes sense, right? The counter-argument that the State made was equally logical, though. Basically, the state argued that it didn’t have the source code, so it couldn’t give it to defendants. Why didn’t the state have it? The company that makes the Intoxilyzer machines had refused, when the State asked, to disclose the source code — claiming it was a trade secret, and protected under copyright laws. The Court could tell the State to hand it over, but the State had nothing to hand over.
A few Judges in DUI cases wrestled with this dilemma for a long time — until this last April, when something big happened in Minnesota: The Minnesota Supreme Court ruled in State v. Brunner that the State had 30 days to produce the source code, or the breath test was going to be suppressed, regardless of whether the State currently had access to it or not. However, in a very similar case, State v. Underdahl, the same Supreme Court said the defense hadn’t proven that the source code was relevant to the case and therefore that breath test would not be thrown out without the code. The reason for these two different results boils down to the individual facts of the cases, the differences in the test results and simple math regarding how far off the machine’s readings would have had to have been in order to for the source code to have made a difference.
What happened next was a settlement between Minnesota Department of Public Safety and CMI. This seems like a good thing for folks facing DUI charges based on Intoxilyzer 5000EN test results, right?
The gist of the settlement is that CMI agrees to grant access to the once-guarded, super-secret source code in that anyone who needs access to it can view it in its “native electronic format” at the company’s headquarters in Owensboro, Kentucky.
This is what the federal judge approved last Thursday: A trip to Kentucky and an unlimited number of hours pouring over non-sensical “native electronic format” in order to attempt to discover whether this company’s equipment is functioning the way it’s supposed to do.
But take heart, readers! There are two pieces of good news in this. First, the courts have shown CMI that claims of “proprietary” protection will no longer be entertained in the state of Minnesota. And second, although the federal opinion approves the settlement, individual state trial judges are not bound by the federal judge’s decision.
To read a summary of the settlement, check out this link: http://www.minnlawyer.com/userfiles/pdf/consent.pdf