Stalemate in Minnesota Breathalyzer Source Code Disclosure Order
In order to prepare a defense of his DUI charges, a Minnesota citizen named Dale Lee Underdahl, with the help of his Minnesota DUI lawyer, submitted a request to the court to see the source code for the breathalyzer that was used for the breath test in his arrest.
The Minnesota Supreme Court ruled that Underdahl must be given access to the source code of the Intoxilyzer 5000EN as he requested, and gave the state a deadline within which to provide him the information.
Now weeks past the deadline, Underdahl is anticipating being able to move for the blood alcohol content (BAC) reading in the breath test to be thrown out. This method is one of several methods of defending against DUI charges.
However, this does not mean Underdahl will be exonerated from the charges. There are several components to the prosecuting attorney's case against the DUI offender, and while it may improve Underdahl's chances to successfully defend himself, throwing out the breath test results may not be enough.
In any case, the state of Minnesota has been leery of revealing the breathalyzer source code from the beginning. After a first judge granted his request, the state initially balked because Commissioner of Public Safety Michael Campion opposed the order. The state attorney appealed once to a higher court, and when their request was denied, they appealed again to the state Supreme Court.
In their appeals, the state based their dispute on their claim that the source code is confidential because of its copyrighted status. They claimed that they do not have the ability to authorize a disclosure of the code because CMI, who manufactures the Intoxilyzer 5000EN, owns it.
However, the court decision used the original bid contract drafted by CMI in order to secure the state contract, which grants Minnesota rights to any material that the company manufactured or created under the contract. In the words of the contract, "all right, title and interest in all copyrightable material will be the property of the state." This provision, in the mind of the ruling judge, includes source code written for the breathalyzer device.
Even if the court had determined that the source code fell outside of the provision, the contract contains language to the effect that CMI agrees to provide information required by law enforcement or lawyers in cases involving reports made by the device as part of evidence.
The state of Minnesota and CMI as well hold firm to the point that knowing the source code does not provide any better sense of the accuracy of the machine. However, until a consumer is given the Intoxilyzer code, which is a standard breathalyzer in 20 states, CMI has effectively cut off one entire line of defense for DUI offenders.
And, the assertion that breathalyzer source code is proprietary has been found to be completely false in another case. A judge in New Jersey ordered the disclosure of the source code of the Draeger AlcoTest 7110, which experts at Base One Technologies concluded was "not really unique or proprietary."
Could a similar conclusion be reached about the Intoxilyzer? Until CMI finally caves in to the court order, we shall never know for sure.
The Minnesota case is not the only case in which companies have avoided revealing the source code. In Florida, around 300 DUI cases were dropped when Florida DUI lawyers were able to argue that they were entitled to the source code. A previous Florida law that mandated "full information about the test" was the basis for their argument, though that law has since been changed to specifically exclude breathalyzer source code as part of the information that must be disclosed.
Maybe the companies who are denying disclosure of the source code have a real reason to fear it. In a recent New Jersey case, Draeger, makers of the AlcoTest 7110 breathalyzer, allowed a team of technology experts examine the source code of that device. Their study found over 19,400 errors in the code, including problems with the coding that might contribute to inaccuracy in the readings. Additionally, the coding techniques and chip used are thirty years old. Their final recommendation was that the AlcoTest was unreliable.
Breathalyzer source code is just one way to defend against a DUI charge. Since BAC is calculated based on the effects of alcohol on an "average person," a defense may argue that the defendant is exceptional in some way that the breath test cannot account for.
Other DUI cases have been thrown out because of improperly maintained or calibrated machines, including both breathalyzers and BAC data analyzers.
In preparation for any criminal charge, the kind of thorough research and education pursued by Underdahl about every aspect of the arrest is not only a smart idea, it may be the only way to have a chance at adequately defending yourself.
If you've been charged with a DUI based on a breath test, there may be a chance to fight back. A DUI lawyer in your area may be able to successfully challenge your breath test results and get charges dropped or reduced.
