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, Isaacs Law Office.
Stay informed: add this blog to your Technorati Favorites, . . .
It’s basically the software. This tells the machine how to interpret the physical data which receives from the defendant’s breath, and how to convert it to BAC. The number it spits out is then compared to the so called “legal limit”, to see whether the defendant is guilty of DUI. Defendants often want to be able to see how the machine analyzed their breath.
=================
davis
Kentucky Treatment Centers
=================
Yes, but ... it can show if the machine is biased, and if the code has been tampered with, such as was argued by defense counsel in Florida and Arizona.
Posted by: davis1900 | August 04, 2008 at 03:09 AM