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Tuesday, December 11, 2007

Source code dispute puts convictions in jeopardy

Hennepin County District Court Judge Jack Nordby has issued an order warning that he believes the statutory scheme for penalizing intoxicated drivers is in jeopardy because the manufacturer, CMI Inc., refuses to turn over the source codes. The Court of Appeals has already upheld the suppression of evidence in implied consent cases where the code—which reveals whether the machine is working properly—has been demanded but not revealed. The court soon will rule on the issue in a criminal case.

Meanwhile, Nordby has forwarded to Minnesota Lawyer an order suppressing intoxilyzer results unless the source code is revealed within 30 days. History suggests it won’t be. Nordby treated the question as a simple discovery dispute but questions, “in passing,” whether “it [is] thinkable, constitutionally, that our society could imprison persons who simply decline to take a test on a machine to whose design, construction, and functioning they do not have complete access?”

The case is State v. Littman. The attorney for the state is Jennifer Marie Inz and the attorney for the defendant is Derek Anthony Patrin.


Local 552 Member said...

What is most disappointing is how long this took to be put out there for all to see. Nordby, despite his "unique" views on things, is right on the money here. All the high buck lawyers in this state, and a virtually unheard of defense attorney puts defendants on an even playing field.

Derek A. Patrin said...

I won't be "virtually unheard of" for long... (and I am definitely approaching "high buck" fee levels). Seriously though, my office has been toiling over this issue since Underdahl came out of the Supreme Court in July, and many judges just don't get it. Judge Nordby is one of the few judges who does not harbor disdain for litigious DWI defense attorneys. Many other judges just roll their eyes and smirk through the whole source code issue, simply because they feel like this is a ploy to take advantage of the manufacturer's unwillingness to turn over the source code. Since when is it a "ploy" to zealously defend a client's constitutional right to confrontation?? The DWI defense bar in this state busts its collective rear-end trying to preserve the constitutional rights of the drunk driver, and time after time we see serious felony cases like drug sales, murders, and sex crimes give the defendant more protection than DWI defendants.

OK, my rant is over (although I could go on forever).