Minnesota Supreme Court Gives DUI Defendant Computer Code for Intoxilyzer

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In 2006, a Florida court refused to give Todd Moe the secret computer code, called source code, that runs the Intoxilyzer 5000 alcohol breath testing device . Now, the Minnesota Supreme Court has upheld a lower court ruling saying Dale Lee Underdahl is entitled to the source code for Minnesota's version of the Intoxilyzer.

A driver who registers a blood alcohol level (BAC) of at least 0.08 percent is presumed to have been driving while intoxicated. The presumption shifts the burden of proof from the state to the defendant. Although the state in most criminal cases has the burden of proving the defendant guilty, the defendant in a DUI case with a BAC of .08 or greater must prove the measurement is invalid. This can be done by showing that the test was improperly performed or that the measuring device did not function properly.

As part of any criminal case, a defendant is entitled to discover, to review and use at trial, evidence and information in the possession of the prosecution that could help the defendant win his case. A Florida court had ruled in an earlier case that defendants were entitled to operator's manuals, maintenance manuals, and schematics of the Intoxilyzer.

The source code for the Intoxilyzer is another matter. The code is the property of the company that makes the Intoxilyzer, CMI, Inc., of Kentucky. The code is copyrighted material and the company claims it is a trade secret. Federal law allows a company to protect its secrets and CMI has steadfastly refused to give up the code.

Claiming the device used to test his BAC may have been modified, Todd Moe asked the Florida court to order the State to turn over not only operating manuals, but also the source code for the Intoxilyzer 5000. The Florida court rejected his request, saying that the source code is the property of CMI and not in the possession of the prosecutor.

Dale Lee Underdahl's case is different. In 1996, Minnesota asked CMI to build a new breath testing device for the state, which became the Intoxilyzer 5000EN. Minnesota's contract with CMI says that the State owns all copyrights and copyrightable material produced by CMI in connection with the Minnesota Intoxilyzer. The contract also requires CMI to turn over the source code to a defendant when ordered to be a court.

The Court ruled that the State of Minnesota was in possession of the source code because it is the owner of the code. Although the State is reluctant to, the State may have to sue CMI to obtain the source code for the defendant. If that becomes necessary, what portion of the code must be turned over to Underdahl would have to be determined in the Federal courts.


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