Minnesota DUI breath testing on the ropes
It appears that Minnesota may be ground zero in the battle for the release of the source code that powers Intoxilyzer breath test devices.
Intoxilyzer, which is a brand of CMI, Inc., is the most widely used type of breath testing device in the country.
The Minnesota Supreme Court issued an opinion on the matter.
In a nutshell, if you can come up with a reason why the source code might help your case, then, in MN DUI cases, you get it. If you can't think of a reason why you need it, then you don't get it.
The problem with this logic is that there may be a legitimate need for the discovery, which a DUI defendant can't discover until they actually have the source code.
Minnesota DUI Lawyer Charles Ramsay, although not a lawyer named in this case, has been instrumental in the fight to obtain the code in Minnesota.
Tucson DUI Intoxilyzer Source Code Issue Update
Here is an update on the DUI Intoxilyzer source code issues being litigated in Tucson, Arizona.
Ariz. court overturns order on breath-testing code - Forbes.com: "An Arizona appellate court skirted a big-picture issue snagging numerous drunken-driving cases as it issued a narrow ruling that overturned a judge's order requiring prosecutors to obtain a breath-testing machine's computer code and provide it to defense attorneys.
A Tucson-based panel of Court of Appeals judges ruled that Judge Deborah Bernini of Pima County Superior Court shouldn't have issued the order because law enforcement officials did not have the 'source code' for the Intoxilyzer 8000 machine and had no way to get it from the out-of-state manufacturer.
The next step in the case will likely be for defense lawyers to ask Bernini to prohibit use of breath-test results from the Intoxilyzer 8000, defense attorney Joseph P. St. Louis said from Tucson.
Meanwhile, the Court of Appeals' ruling Tuesday leaves a tangle of rulings by Superior Court and municipal judges, some of which prohibit use of the evidence while others that permit it, said Deputy Pima County Attorney Jacob Lines.
'It really depends on which judge you're in front of,' Line said. 'It's sort of been a mess.'
In cases where judges don't allow breath-test results to be used, prosecutors still press many drunken-driving cases by using evidence that includes testimony from police about drivers' performance behind the wheel and in field-sobriety tests, St. Louis said.
The Pima County Attorney's Office drew support in the Court of Appeals case from the Arizona Attorney General's Office and prosecution agencies for jurisdictions that included Phoenix, Tempe, Tucson and Yavapai County.
The Arizona Department of Public Safety has 250 of the Intoxilyzer 8000 machines in use statewide, spokesman Bart Graves said. Municipal police using the machines include departments in Phoenix and Tucson, officials said."
This issue has not gained the kind of traction in the Phoenix area that it has in Tucson.
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.
Minnesota DUI Case: refusal suspension upheld
In a Minnesota DUI case, the Court of Appeals affirmed the implied consent license revocation of a person who did not provide an adequate breath sample. The officer deemed it a refusal when the Intoxilyzer timed out, and that was it.
The Cite: Londo v. Commissioner of Public Safety, Court of Appeals of Minnesota, Decided December 9, 2008 (currently designated as unpublished).
The relevant facts from the opinion:
After four attempts to get appellant to blow into the Intoxilyzer, the device timed out without an adequate breath sample. Deputy Sturm, who was present during the Intoxilyzer test, informed appellant that because she did not blow into the machine, she was deemed to have refused the test. Appellant was then taken to booking. After a couple of minutes, Deputy Sturm initiated the revocation of appellant's driver's license and again told appellant that she was being deemed to have refused the breath test.
The holding that shows that in civil DUI license proceedings, there is a very low level of protection of drivers’ rights:
Appellant also argues that due process requires Deputy Sturm to have given her a chance to cure her refusal. In support of her assertion, appellant directs this court to State v. Netland, 742 N.W.2d 207 (Minn.App.2007), review granted (Minn. Feb. 27, 2008). In Netland, we held that in the criminal context, due process requires a testing officer to provide an alternative method of chemical testing where a driver is deemed to refuse a chemical test because of an inadequate breath sample but seeks additional time to provide an adequate sample and an alternate mode of chemical testing. Id. at 223.
The district court found Netland similarly unavailing to appellant's argument. We agree with the district court. Appellant's license revocation is a civil matter, whereas Netland was a criminal case. As we stated in Netland, "[t]he minimum level of fairness that our system of law requires to deprive a driver of driving privileges is not the same as that required to impose a criminal sanction." Id. at 219. We have previously held that "[i]n the civil implied-consent context, '[i]f a person fails to provide an adequate breath sample, the officer, absent a determination of physical inability, is not required to offer the driver an additional test.' " Id. (citing Smith v. Comm'r of Pub. Safety, 401 N.W.2d 414, 416 (Minn.App.1987), review denied (Minn. Apr. 29, 1987)). Therefore, Deputy Sturm was not required to provide appellant with an alternative test after appellant was deemed to have refused the breath test.
My rant… er, comments: From a defendant’s perspective, prepared to get *&$#@ed at the DMV. Because the civil standard provides so little Constitutional protection, as long as the administrative law judge crafts the findings of fact to support their conclusion, there is often little even a very skilled DUI lawyer can do to stave off the refusal suspension.
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.
