"Show Source Code" Becomes Popular New Plea for Minnesota DUI Cases
By: Mary Ann Pekara
Breathalyzer manufacturers have long been reluctant to allow consumers to have access to the source code for their breathalyzers. Claiming that the coding in their breath test devices are proprietary in nature, and thus fall under a confidentiality agreement, makers of many of the nation's most popular breathalyzers have fought disclosure of source code in Florida, New Jersey and Minnesota.
Of course, breathalyzer manufacturers may wish to protect proprietary secrets, but their tendency to stall or outright refuse to turn over their breathalyzer source code has DUI cases being dismissed or delayed indefinitely, rendering the machines and their results useless in some areas.
A recent standoff in a DUI case in Minnesota has prompted DUI attorneys to pursue the "source code defense" as their primary strategy, since judges have shown favor to clients who are trying to dispute breath tests and granted them access to the breathalyzer source code.
Minnesotan Dale Lee Underdahl, who was arrested for DUI with a blood alcohol content of 0.23 percent, and his DUI attorney demanded that they be shown the source code for the Intoxilyzer 5000EN, the standard for the state of Minnesota, in order to mount a proper defense of the breath test.
Intoxilyzer balked at first, missing the deadline for turning over the code, then stated that they would only turn over the code with a huge list of strict stipulations.
The judge assigned to the case wasn't impressed, calling it an example of "too little, too late" and throwing out the results of the breath test in the case. As a result, Underdahl was able to keep his driver's license.
Not all cases will be able to be overturned or have the breath test thrown out because of the same defense, however. The ruling that the source code is "discoverable" in a DUI case came from the Minnesota Supreme Court, but they purposely left the wording of their ruling open to allow trial court judges to make their own rulings as to whether or not the breathalyzer source code must be presented for evaluation.
According to new reports on the story in the St. Paul Pioneer Press, attorneys, at least in the Minneapolis area, are seeing the potential strategy in requesting the source code. "We plead it in every single DWI case we do now," said Marsh Halberg, of Halberg Criminal Defense in Bloomington. "Any attorney worth his salt will be pleading for the source code."
Underdahl's own attorney, Jeffrey Sheridan, said that he himself always uses the source code defense as one of several tactics for fighting DUI, but doesn't expect to always receive the same results as Underdahl's case.
Up to this point, DUI attorneys have been using the "source code defense" in civil courts, where DUI penalties such as driver's license suspension are decided. However, many lawyers are presenting the defense for the criminal side of their DUI arrest with some success. Underdahl himself is going to present a similar defense for the criminal aspect of his arrest in upcoming weeks.
A recent New Jersey case proves that one of the reasons that manufacturers may be so unwilling to part with their source code is that it could be embarrassing. A judge in New Jersey ordered Draeger to reveal the source code for its popular AlcoTest brand breathalyzer. When a computer technician lab analyzed the code, it found that not only was the source code not proprietary, but that it contained over 19,000 errors! Also, the coding was antiquated by modern standards, and was coded onto a '70s, Atari-style chip!
Further, many experts agree that breathalyzer manufacturers may find themselves losing business if they continue their track record of refusing to disclose the source code of their products. If a state has a choice between a company that has a publicly-available code and is cooperative in legal matters, and one who is not, they will likely choose the cooperative company.