More Intoxilyzer arguments bubble up 

Posted: 1:00 am Mon, March 2, 2009
By Minnesota Lawyer

The long-brewing feud over the Intoxilyzer’s source code will come to a head this May with a bench trial before U.S. District Court Judge Donovan Frank.

The case pits DUI defense lawyers, who want the code to search for potential glitches in the Intoxilyzer’s results, against the state, which says that it can’t turn over the code because it doesn’t have it; and the manufacturer, CMI, which says the source code is a trade secret.

Defense lawyers have met varying degrees of success asking Minnesota trial court judges to compel discovery of the code. Some judges have ordered the code to be turned over, mostly without success. (CMI has been reluctant to provide it, so the state has argued that it does not have the code to turn over.) Other judges have put the difficult-to-satisfy burden on defense lawyers of showing how the code would benefit the defense. Another group of judges has flatly rejected defense lawyers’ source code requests.

The state, apparently seeking to put the source code argument behind it, sued CMI to force it to disclose the source code. The state and CMI attempted to settle the case, but, in highly unusual move, Frank rejected the parties’ agreement. The federal judge found that the proposed settlement — which would have required DUI defendants to travel to CMI’s headquarters in Kentucky to view the source code — was burdensome to defendants and that it would be inappropriate for federal courts to oversee such a process.

Question about the functioning of the Intoxilyzer are an incessant source of frustration to defense lawyers, who have repeatedly litigated the source code issue in the trial courts.

The Minnesota Supreme Court is now considering State v. Underdahl and a companion case, an appeal from the Court of Appeals’ ruling that a Dakota County District Court judge committed an abuse of discretion by granting two criminal defendants’ motions for production of the code. The Court of Appeals determined that a defendant must demonstrate that an examination of the Intoxilyzer software would show defects in its operation or at least would be necessary to determine whether defects exist. The court found that the defendants had not made such a showing and thus failed to show how the code relates to their guilt or innocence.

Eagan attorney Jeffrey Sheridan, who represents defendant Dale Underdahl, stressed at the time of the Court of Appeals decision that the court did not issue a bright-line ruling that the source code isn’t discoverable. Instead, he explained, the ruling means that the parties to a DUI prosecution will now be forced to go through lengthy evidentiary hearings on the subject.

Updated software not installed

As DUI defense lawyers eagerly await the high court’s decision in Underdahl, a whole new round of Intoxilyzer litigation may be on tap.

Defense attorneys say that the Intoxilyzer sometimes erroneously fails to record samples, allowing the police to charge the defendant with refusal to take an implied-consent test. (If a suspect blows repeatedly into an Intoxilyzer without providing a sufficient sample to be analyzed by the machine, the suspect is frequently charged with purposely attempting to thwart the machine, which is deemed a refusal to take the test. Refusal to take an implied-consent test is itself a crime in Minnesota.)

In State v. Netland, the Minnesota Supreme Court recently upheld a conviction for refusal to take the Intoxilyzer test. The defendant said she attempted to give a sample, but the machine couldn’t read it and she was deemed to have refused. A subsequent urine test showed a blood-alcohol content of .036, well below the legal limit.

The woman’s attorney, Charles Ramsay of Roseville, said he was perplexed by the decision. “I don’t understand why the Supreme Court would let stand a criminal conviction where the defendant was under the legal limit, was acquitted of driving under the influence and where the refusal was deemed by the machine,” he told Minnesota Lawyer.

Ramsay said that he is planning to move for post-conviction relief on the basis of new evidence about the Intoxilyzer that has emerged since his client’s trial. Ramsay and other lawyers say they have gained evidence that the state is aware that the Intoxilyzer does not work properly in certain circumstances, but has failed to fix it. They point to “smoking gun” e-mails and testimony by Karen Kierzek of the Bureau of Criminal Apprehension in other cases that Ramsay believes entitles his client to a new trial.

Minneapolis attorney John Tackett said that he has obtained testimony from Kierzek on two occasions that the machine’s software can malfunction when a suspect blows hard into an instrument, registering a breath sample as insufficient. (In instances where a suspect’s failure to provide an adequate breath sample has been deemed a refusal, it has generally assumed that the suspect was blowing too softly into the instrument.)

According to Tackett, he elicited testimony from the scientist to the effect that CMI supplied the Bureau of Criminal Apprehension with new software that would address this problem, but that the BCA opted not install it while the source code litigation was ongoing. “They made a conscious decision not to update the software because of the Underdahl litigation,” Tackett said. “They buried it.”

A trial transcript that Tackett provided to Minnesota Lawyer shows the scientist testifying, “We had noticed on some instruments on in some blowing patterns, that if you blow incredibly hard, the instrument doesn’t willingly accept the breath sample.” She said that CMI provided updated software to the BCA but “we did not test it, we did not validate it, it was not approved, and it was not installed.” She said that she “believed” the software was not updated because of the ongoing source code litigation.

Douglas Neville, a spokesperson for the Department of Public Safety, confirmed that there is a software “patch” available for the Intoxilyzer that has not been used, but also said that it would not affect the blood-alcohol content reading. He also pointed out that some of the corrections in the patch are for technical glitches, such as adjusting the instrument’s date reading to take into account the impact of Daylight Savings Time.

Neville acknowledged that the Intoxilyzer overstates the number of attempts made to blow into the machine if the person blows too hard, but again stressed this does not affect the BAC. “I don’t know that that would affect anybody being charged with refusal. That would depend on local law enforcement,” he said.

Ramsay pointed out that if the Intoxilyzer deems a breath sample insufficient, the police do not have to offer the driver an alternative test, and if they don’t offer an alternative test, they must charge the driver with a refusal.

Ramsay said that the problem with puff counts for people who blow too hard may be just the tip of the iceberg with potential Intoxilyzer malfunctions, demonstrating why it’s essential that defense lawyers have full information about the machine’s operations. “We don’t know what other glitches there are,” he said. “[We do know] they’ve identified one problem and refused to fix it.”