Minnesota DUI Intoxilyzer source code case: This ought to make you angry
On March 31, 2009 the Court of Appeals of Minnesota issued an "unpublished" opinion about a Minnesota DUI case involving the much sought after source code for the Intoxilyzer breath test machine. Astonishingly, the Court reversed the lower court's order compelling the disclosure of the source code under threat of suppression of the breath test results.
THIS IS A TERRIBLE OPINION AND SHOULD SHOCK YOU UNLESS YOU ARE USED TO "INJUSTICE AS USUAL"Quick fact summary by the Minnesota Court of Appeals:
The district court granted respondent’s request for discovery of the source code, finding it “relevant and necessary for [respondent’s] defense.” The district court specifically ordered the state to “provide the full source code to [respondent] within 30 days of the filing of this order,” and stated that “[i]f the source code is not produced within 30 days of the filing of this order, the Intoxilyzer test result shall be suppressed.”
Here is the (pardon my judicial criticism) but stupid logic that is used by the court, and is used in many cases to justify admission of unreliable evidence in DWI prosecutions:
The state argues that the district court’s discovery order has a critical impact on its case because if the Intoxilyzer results are suppressed, the state will be unable to prosecute respondent for second-degree DWI over .08 alcohol concentration. We agree. While the state may still prosecute respondent on the DWI charge based on the officers’ observations, this court has held that a critical impact is shown when evidence essential to prove some, but not all, criminal counts is suppressed. See State v. Grohoski, 390 N.W.2d 348, 352 (Minn. App. 1986) (holding that the critical-impact test is met when, without the chemical-test evidence, four of six charges would be dismissed), review denied (Minn. Aug. 27, 1986). Suppression of the Intoxilyzer result in this case, as required by the district court’s discovery order, has a critical impact on the state’s ability to prosecute respondent.
So essentially, their legal reasoning is that they can't compel the source code because they know that the company that makes the Intoxilyzer, CMI, will not give the code up. Therefore, even though the breath test evidence might be unreliable, they are going to allow the state and CMI to get away with it because to do otherwise hurts the state's case!
If you care about justice and this doesn't make you angry, check your pulse. Did these judges actually go to law school?
It gets better:
The state argues that respondent has not demonstrated that the source code has any specific relevance to his guilt or innocence. Specifically, the state contends respondent has not presented evidence raising a question as to the accuracy of the test in his case and has not shown that the Intoxilyzer malfunctioned or that the result was unreliable as to him. The state further argues that “[r]espondent failed to explain to the District Court how the source code could demonstrate some flaw in the software of the instrument or its operation.” (emphasis added)
So this court wants the defense to produce evidence that there is something wrong with the code from the machine in order to compel disclosure of the code. How could they possibly show there was something wrong with it without having a chance to examine it?
With the judicial clarity that this ruling shows on the part of these judges, perhaps they would rule that a psychic's assessment that the test was incorrect would suffice? What the heck are they looking for?
Here's the take home message. If you are accused of DUI in Minnesota, your battle is uphill, with the wind blowing in your face and little monkeys in black robes trying to steal your clothes and pickpocket you as you try to move forward.
Learn more about Minnesota DWI law, and find a Minnesota DWI lawyer.
Intoxilyzer source code update for January 2009
In his noted blog, California DUI Lawyer Lawrence Taylor wrote about the Intoxilyzer source code saga that is playing out in court across the nation. He points out that the manufacturer of the Intoxilyzer refuses to divulge the source code that powers the machine, and therefore renders the machine a "mysterious black box."
I couldn't agree more, and am appalled that Courts still allow the machine's results to be used against a DUI suspect. Meanwhile, the citizens of each state that uses the Intoxilyzer are footing the bill for the prosecutors to continually defend the use of the machines in court and protecting the manufacturer from having to divulge the code.
Mr. Taylor quotes an article from the Tucson Citizen which discusses why Arizona believes that it can't compel the company, which is based in Kentucky to appear in an Arizona court.
I think the real question is why do prosecutors continue to defend this machine, and why do law enforcement officers continue to use it? I think it must be because if/when the source code is shown to be biased, corrupted, inaccurate or worse, there will be a flood of appeals from convictions where these machines were used.
My supposition is that CMI will go gently into that good night. In Arizona, I have definitely noticed a decrease in its use over the past several years. More agencies are switching to a blood standard. Some are now taking both an Intoxilyzer and a blood test.
The era of rewarding brazen corporate greed appears to be coming to an end, and hopefully with it an end to business practices like those noted by Mr. Taylor and the Tucson Citizen article.
Until then the best weapon we have against injustice is to educate the public through blogs like Mr. Taylor's, through reporters who really want to get at the truth, and on a grass-roots level, one juror at a time.
That the manufacturer refuses to testify in court should be highly relevant to any DUI defense against the machine. If judges won't compel the company into court and won't suppress the results of the tests, the least they should do is admit into evidence the facts of this company's behavior, which should speak for themselves.
State Ordered To Produce Intoxilyzer Source Code
Tucson, AZ - A Pima County Superior Court Judge has ordered the prosecution to get the Intoxilyzer source code in electronic format from CMI, the maker of the breath testing machine.
In litigation that has spread through most states that use CMI products, CMI has steadfastly refused to divulge the source code behind its machines, claiming that it is work product and proprietary. Defense attorneys have argued, mostly unsuccessfully, that the source code is necessary to analyze whether the machine accurately analyzes breath samples.
In Tucson, Judge Bernini ordered the State to produce it.
DUI attorneys familiar with the case predict that CMI will refuse to hand it over, perhaps because hidden within it is something that shows that the company betrayed its customers, potentially exposing it to lawsuits.
The Tucson Citizen's recent article on the source code ruling explains the lead attorney's theory.
Other attorneys familiar with the issue speculate that CMI will ultimately have to shut down operations, perhaps resuming under another business entity.
In Arizona, the trend is already towards blood draws, with many officers being trained in phlebotomy.
