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Tuesday, June 10, 2008

Does the Intoxilyzer pass the smell test?

An interesting twist on the Intoxilyzer debate reported in the Pioneer Press today:

Charles A. Ramsay, a DUI defense attorney, on Monday released a copy of
what he calls the "smoking gun" e-mail from a BCA toxicologist to Intoxilyzer
5000 manufacturer CMI Inc. of Owensboro, Ky.

The e-mail, dated Sept. 27, 2006, indicates that the Intoxilyzer "on
occasion" printed out different blood-alcohol readings than what it displayed on
its screen and that the amount of air required to provide a breath sample varied
depending upon the version of software running the machine.

As the article goes on to note that defense lawyers throughout the state have attacked the admission of the results of the Intoxilyzer 5000 because of the manufacturer's refusal to provide the source code in response to discovery requests. Defense lawyers have met with mixed results with the source code argument in the trial courts, with some judges excluding the results and others not.

The Court of Appeals recently issued an opinion putting the onus on defense lawyers to show that providing them with the source code would help their clients. The state Supreme Court has yet to address the issue.

The Attorney General's Office has filed a federal lawsuit to obtain a copy of the source code. But Ramsey, who, along with other DWI defense attorneys seeks to intervene in the suit, is skeptical. He referred to the AGO's efforts to get the code as "lackluster" in a press release sent to Minnesota Lawyer.

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