Minnesota Lawyer Blog

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.

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.