Kentucky DUI Defense Lawyer

Kentucky Appellate Court Orders Disclosure of Intoxilyzer 5000 Source Code

    A Kentucky Appellate Court recently held that a defendant can examine the source code of the breathalyzer instrument manufactured by CMI, Inc., more commonly known as an Intoxilyzer 5000, so they could challenge the validity of the breath alcohol readings.  See Lennie House v Commonwealth of Kentucky, No 2007-CA-000417-DG (Ky App 01/18/2008)

     In this case, the defendant sought to discover the source code of the Intoxilyzer 5000 so it could be examined for "bugs" or flaws in the code's logic which could result in an incorrect blood alcohol reading. Kentucky Court's have previously prevented defendant's access to this information, siding with CMI and the Commonwealth of Kentucky that the computer source code is a protected trade secret and that this should weigh against disclosure. However, the Kentucky Court of Appeals stated that the defendant's need for this information could only be quashed upon a showing that providing the information would be unreasonable or oppressive.

Post by Nicholasville Kentucky Attorney Stephen J. Isaacs

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MINNESOTA SUPREME COURT ORDERS INTOXILYZER MANUFACTURER CMI TO TURN OVER SOURCE CODE TO DEFENDANT

    In this case,  Dale Lee Underdahl was arrested for driving while intoxicated (DUI) and submitted to a breath test using the Minnesota model of the Intoxilyzer 5000EN. At his implied consent hearing, Underdahl made a discovery motion, by his attorney, that included, among the items sought, the "complete computer source code for the Intoxilyzer 5000EN currently in use in the State of Minnesota …

    In response to Underdahl's defense attorney’s request that the Minnesota Commissioner of Public Safety provide the complete computer source code for the operation of the Intoxilyzer 5000EN so he could properly defend his client, a Minnesota District Court ordered the Commissioner of Public Safety to provide the defense counsel with an operational Intoxilyzer 5000EN instrument and the complete computer source code for the operation of the Intoxilyzer 5000EN.

    A vital part of defending a DUI  / DWI case involves being able to obtain and examine the evidence collected by the government to be used against the accused. Defense attorneys argue that they need the source code for the Intoxilyzer 5000EN used to measure the BAC of an accused person so as to independently verify the accuracy of the Intoxilyzer 5000EN test. In most states, this right has been denied.  Courts refuse to permit disclosure of this information and have sided with CMI, the manufacturer of the Intoxilyer 5000EN, who argues that the source code is confidential, copyrighted, and propriety, lending itself to be protected from disclosure.

    On Appeal, the Commissioner sought a writ of prohibition to prevent the district court from enforcing its discovery order. The Commissioner essentially argued that the court of appeals should issue the writ of prohibition because Minn. Stat. § 634.16 (2006), which sets forth a presumption of reliability whereby the results of an infrared breath test are "admissible in evidence without antecedent expert testimony," divests the district court of jurisdiction to order the additional discovery. In the alternative, the Commissioner argued that if the court had jurisdiction, it abused its discretion by ordering discovery of source code that the Commissioner claimed was not in its possession, custody, or control and was, therefore, non-discoverable. The Commissioner also argued that due process did not require discovery of the source code because the code was proprietary to CMI and thus unavailable to the state.

    The Minnosota Supreme Court disagreed with the Commissioner, and held that the district court did not exceed its jurisdiction.  The Court sated that the Commissioner failed to meet his burden of demonstrating that the information (source code) sought is clearly not discoverable and that he has no adequate remedy at law.  The Court noted that the district court found that that under the contract between the state and CMI, the state owned the source code for the Intoxilyzer 5000EN . The Court stated that the Commissioner could obtain the source code by enforcing the State’s contract with CMI to provide the source code.

For more information, see:  In re Commissioner of Public Safety, Petitioner.Dale Lee Underdahl, Respondent v.Commissioner of Public Safety, Appellant. No. A06-1000, Supreme Court of Minnesota. (Filed July 26, 2007.)  or www.lawreader.com.

Post by Lexington Kentucky Attorney Stephen J. Isaacs

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Pro Wrestler Kurt Angle Arrested at Home For DUI

Pro wrestler Kurt Angle was charged with driving under the influence and careless driving in Pittsburgh based on a witness’ statement. One witness claimed Angle almost hit a car with his white Cadillac Escalade.

Police went to Angle's home to investigate the reports of his erratic driving, and reported that Angle showed signs of intoxication.

Police said they smelled the odor of alcohol and gave Angle a field sobriety test which Angle reportedly failed.

A date for Angle's preliminary hearing has not been set.

Post by Lexington Kentucky Attorney Stephen J. Isaacs, Isaacs Law Office.

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Driving While Distracted

In browsing the web, I happened upon Steven Eversole’s observation of the ignorance, poor research and reporting skills of members of the media. It appears that the Huntsville Times (Alabama) ran an editorial, without citing a single statistic, claiming that those accused with DUI's are the most dangerous drivers in Alabama. According to Eversole, the Huntsville Alabama Times failed to mention recent statistics that clearly demonstrate "driving while distracted," i.e. eating, talking on the cell phone, etc., is as bad or worse, than driving under the influence of alcohol.

In 2006, a National Highway Traffic Safety Administration study found that almost 80 percent of car accidents resulted from some type of distraction.

Thank you, Steven Eversole, for pointing out this fact.

Post by Lexington Kentucky Attorney Stephen J. Isaacs, Isaacs Law Office.

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Diabetic Victims of DUI Arrests

As a Kentucky DUI attorney, I have observed diabetics arrested and victimized by the zealous efforts by poorly trained law enforcement officers seeking to obtain a DUI convictions. The truth is that some diabetic individuals arrested for DUI are innocent of the DUI charges and need medical attention.

For example, in one case reviewed for this article, the subject arrested by police for DUI suffered from diabetic symptoms, and the officer did nothing to help the detainee. In that case, the officer stated on the police report that the subject had the odor of alcohol, that they failed all of the standard field sobriety tests (SFSTs), and that the Portable Breath Test (PBT) device measured alcohol on the subjects breath. Yet the subject's blood test for alcohol registered ZERO. In that case the prosecutor refused to drop the charges, further victimizing the detainee.

In reality, this author has the opinion that many Kentucky police officers are not given enough training to determine if a person should be arrested for DUI or if they are in need of medical attention. I wrote about the problem of poor officer training in my post Standard Field Sobriety Tests Do Not Accurately Measure Driver Impairment.  In that post, I presented a research study on the inaccuracy of the Standard Field Sobriety Tests conducted in 1991 at Clemson University which showed that SFST's yield false results.  In that study, 21 sober individuals with a blood alcohol content of zero (0.00) were videotaped performing six common Standard Field Sobriety Tests. The videotapes were then shown to 14 officers who were asked to determine if each of the individuals had too much to drink and drive. The officers were not informed that the individuals on the videotapes were sober.  The officers found that 46 percent of the time the individuals were too intoxicated to drive.  Since this study did not occur in Kentucky, it therefore can be argued that this may not be limited to Kentucky police officers.

This author therefore recommends that Kentucky police officers who can be expected to arrest individuals for DUI be given additional training to aid in the detection of persons suffering from medical conditions, including diabetes.

Post by Lexington Kentucky Attorney Stephen J. Isaacs, Isaacs Law Office.

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Kentucky Legislators To Vote On Tougher DUI Laws.

Kentucky Representative Jody Richards recently filed tougher Driving Under the Influence bills for consideration by the Kentucky 2008 General Assembly: The DUI bills, while not law, seek to lower the alcohol percentage from 0.18 to 0.15 for increased penalties; reduce the alcohol concentration from 0.18 to 0.15 for an aggravating circumstance; and amend current law to remove the statutory right of DUI suspects to make telephone calls to an attorney upon arrest.

Post by Nicholasville Kentucky Attorney Stephen J. Isaacs, Isaacs Law Office.

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Executive Director of Ky Alcoholic Beverage Control Arrested for DUI

Chris Lilly, the Executive Director of Kentucky's Alcoholic Beverage Control Department, was arrested September 24, 2007, for DUI.

Police stopped Lilly after observing him weaving and driving slowly. Lilly's blood-alcohol level measured 0.18.

Post by Lexington Kentucky Attorney Stephen J. Isaacs, Isaacs Law Office.

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