Stalemate Reached in Minnesota Breathalyzer Source Code Ruling
By: Mike Stetzer
The request made by Dale Lee Underdahl seemed logical enough: in preparation for his defense against DUI charges, Underdahl needed access to further information about the Intoxilyzer 5000EN that is used in breath tests in the state of Minnesota. And the particular focus of his interest was the source code used to program the computerized breathalyzer.
When the Minnesota Supreme Court ruled that Underdahl must be allowed access to the source code as he requested, the state was given a deadline in which to provide him the information. Now, weeks past the deadline, Underdahl is gearing up to move for the blood alcohol content (BAC) reading in the breath test to be thrown out.
When Underdahl made the request, pursuing all potential sources of defense as any citizen is entitled to do, he probably did not guess the harsh backlash from the state. After a judge granted his request, the state initially balked. Commissioner of Public Safety Michael Campion staunchly 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.
The state's dispute with the court's decision was based on their contention 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, an article on CNET quotes parts of the court decision, which points out that the original bid made by CMI to secure the contract with Minnesota for usage of the breathalyzers contains language that grants the state rights to the material created as part of the contract. According to the contract, "all right, title, and interest in all copyrightable material will be the property of the state."
Furthermore, even if the source code was deemed to be outside of the reach of this stipulation, in signing the contract CMI agreed to provide any "information" required by lawyers in cases involving anyone tested by the device when its measurements are used as evidence. In the estimation of the court, these provisions included the source code.
Underdahl's Minnesota DUI lawyer was quoted in several news outlets as saying that disclosure of the source code is essential for the case, because unless the code is analyzed, no one can be sure that the device is accurate in any way, that it is not just a "random number generator."
Those against revealing the source code maintain that knowing the source code does not provide a better knowledge of the accuracy of the machine. However, until a code is provided, this kind of argument is too one-sided to be more than an unfounded assertion.
Now, the Minnesota case is heading towards a resolution that will likely be in favor of Underdahl, at least on the charge of his BAC being over the legal limit of 0.08 while driving.
Disputes over the source code of breathalyzers have cropped up before, and have resulted in dismissals of breath test and BAC evidence, and in some cases entire DUI cases.
A notorious rash of dropped DUI cases occurred recently in Florida, where law mandated that "full information about the test" be provided to DUI defendants. Florida DUI lawyers were able to successfully argue that this "information" included the source code of the Intoxilyzer, also used exclusively in Florida as in Minnesota. As a result around 300 DUI cases were dropped. The Florida legislature has since amended the statute to clarify that the law is not intended to provide access to breathalyzer source code.
The Intoxilyzer breathalyzers have been particular targets for DUI defendants, because of their widespread use and widely-publicized refusal to disclose the source code.
A DUI case may also be thrown out on other grounds. 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.