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Monday, March 10, 2008

Breath test doesn't pass the smell test right now

The following is the full-text of this week's editor column from Minnesota Lawyer, which we are making available to our blog readers as a special extra.

There is a place where defendants have gone to prison based upon evidence that cannot be verified; where lawyers’ attempts to find out the source of this incriminating evidence have been completely rebuffed; and where the courts have been powerless to help.

No, I don’t mean Guantanamo Bay, Iraq or Pakistan — the place I am talking referring to is Minnesota.Ladies and gentlemen, in the companies behaving badly category, I submit for your consideration Kentucky-based CMI Inc., maker of the breath-testing device used to ascertain whether Minnesota drivers are drunk.

Pursuant to an exclusive contract with the state, CMI developed a specialized version of its device for use in Minnesota — the Intoxilyzer 5000EN. For the last decade or so, the device has furnished evidence that has been used to convict countless suspected drunk drivers. The only problem is that none of the defendants, lawyers, judges or jurors involved in the cases had the least idea how this magical machine works.You blow into it, and it pumps out a number. If it’s a .07, you go on your merry way. But if it’s a .08, your life just went into the crapper. It would be nice to have some way of checking to see how those numbers are being generated, wouldn’t it?

Some DUI defense lawyers thought so. In 1996, they began demanding the source code, which would allow them to see how the machine came up with those handy-dandy numbers. But CMI would have none of it. The company fought tooth-and-nail against providing the information, which it maintained was proprietary. The company has even reportedly flouted more than 100 court orders requiring it to produce the source code despite a provision in its contract requiring it to furnish such information when required to do so. (Not to mention the copyrights belong to the state under the development agreement for the Intoxilyzer 5000EN.)

Now keep in mind, we are not talking here about an effort to find out what’s inside the special sauce on a Big Mac or what gives Coca Cola that extra zip. This is an attempt to find out whether or not the evidence we have been using to send people to jail is accurate.Should we accept a simple “trust us” from a company that defies our courts?

Fortunately, the state of Minnesota no longer thinks so. Last week, the state filed suit in federal court against CMI, alleging that the company had breached its contract and engaged in copyright infringement. The state seeks monetary damages and a much-overdue copy of the source code.

“CMI’s refusal to turn over the source code has placed the outcome of numerous impaired driving-related cases in jeopardy, has forced the State to incur substantial expenses, and may force the state to replace its entire fleet of evidentiary breath testing instruments,” the state says in its complaint.

Hopefully, when and if CMI finally does produce the source code, it will turn out to have a scientific reliability above that of a divining rod or a “Magic 8 Ball.” In the meantime, more and more jurisdictions will likely switch to urine and blood tests to determine the sobriety of drivers. I, for one, don’t blame them. At present, something stinks about the breath test.


Anonymous said...

Do you have a link to the Complaint?

Mark Cohen, editor said...

For a fax copy of the complaint, please contact Minnesota Lawyer associate editor Barbara Jones at ((612) 584-1543 -- or by e-mail at:barbara.jones@minnlawyer.com.

Please provide your fax number.