Lawyers band together as Intoxilyzer challenges bottleneck courts 

Posted: 1:00 am Mon, December 21, 2009
By Barbara L. Jones

In an unprecedented effort, prosecutors and DUI lawyers are joining forces for a common cause — keeping source code disputes from putting a stranglehold on implied consent proceedings and DUI prosecutions.

The “source code” is the computer code that underlies the Intoxilyzer, the device used to determine blood-alcohol levels in use by police throughout the state. Defense lawyers want to have the code examined because they think it may reveal issues with the reliability of the device. CMI, the device’s maker, disputes this, and has been reluctant to provide the code, claiming it is a trade secret.

A spate of inconsistent trial court rulings left the issue of the discoverability of the source code — and the future of the underlying prosecutions — in doubt. The Minnesota Supreme Court earlier this year weighed in, ruling that after a threshold evidentiary showing of the code’s relevance, DUI defendants are entitled to get the code and have it examined by an expert.

Now many criminal defense lawyers and prosecutors throughout the state are asking judges to consolidate the many hundreds of cases in which the source code has been challenged to hear expert evidence on the source code and make a single statewide determination on how the source code may affect the overall reliability of the Intoxilyzer.

It appears to be the first time in Minnesota history that such a joint effort has occurred, and it also appears to be the first such venture in the country, although challenges to the devices measuring blood alcohol content have occurred in other states.

The consolidation effort is supported by CMI, the maker of the Intoxilyzer.

Minneapolis attorney William McNab, who represents CMI, said that no other such efforts in other states have proceeded this far.

Meanwhile, lawyers and judges in a number of individual counties are seeking their own consolidations in cases the statewide effort does not work out. Some of these consolidation efforts involve just implied-consent cases, and others also seek to involve the criminal DUI prosecutions.

Avoiding a trip to Kentucky

Initially CMI refused to provide the source code even to its client, the state of Minnesota. Minnesota eventually sued CMI and the settlement of that case provided that defense experts could examine the source code — but only at CMI headquarters in Kentucky.

That’s an expensive piece of discovery and not one that individual defendants want to do over and over again. So Minnesota attorneys formed into a Minnesota Source Code Coalition.

“Nobody has the time or the energy or the money to do this on their own,” said Minneapolis attorney Marsh Halberg, a member of the coalition.

The coalition has retained an expert and has negotiated the terms of the access to the source code, coalition member Jeffrey Sheridan of Eagan said.

An agreement reached earlier in December to have an expert examine the code fell through, but when Minnesota Lawyer went to press last week an agreement had been reached to have “boots on the ground in Kentucky,” according to Sheridan. The state is working on retaining its own expert, he added.

Sheridan said that the work product of the source code coalition is only going to be available to attorneys who join the coalition and help foot the tab for the expert.

Attorneys who are not part of the coalition will not be able to obtain continuances in order to benefit from the discovery conducted by coalition lawyers, he added.

Attorneys anticipate that the end result will be a judicial determination of the Intoxilyzer’s reliability. But they don’t really know how they will get to that point.

Halberg speculated that there may eventually be a hearing to determine whether the second prong of Frye-Mack is satisfied — i.e. whether the Intoxilyzer has foundational reliability.

What both defenders and prosecutors don’t want are myriad disparate District Court decisions on source code reliability.

Implied consents

The Minnesota Attorney General has moved the state Supreme Court to assign source code implied consent cases to a single judge or panel under Rule 113.03, General Rules of Practice.

The motion follows a request by letter by Ramsey County District Court Chief Judge Kathleen Gearin to consolidate the cases. Court Commissioner Richard S. Slowes responded that such a request must be made by motion, so the state went ahead.

Waiting for the Supreme Court to rule raises additional concerns, because the cases that are backing up will have to be heard at some point, which poses the specter of a huge “bubble” of implied consent proceedings.

Mini-consolidations are already occurring

Rather than wait to see if there is some sort of statewide consolidation, some judicial districts are moving ahead with their own “mini-consolidations” of source code cases.

The 1st Judicial District was the first to consolidate. Judge Jerome Abrams issued a case management order on Dec. 2 setting a final hearing on the source code issue in implied-consent proceedings for May 10-21, 2010. There is also a separate effort to consolidate the criminal prosecutions in the 1st District. 

According to Minneapolis attorney Marsh Halberg, there are more than 500 cases consolidated in the 1st District.

Hennepin County has consolidated about 100 cases and held a hearing on Dec. 11 which turned out to be an informational meeting, Eagan DUI defense lawyer Jeffrey Sheridan said. The Hennepin County judges have decided to follow the 1st District model and have set a status conference for June 2010, after the 1st District’s scheduled hearing, according to Sheridan. Of course, the Supreme Court may intervene before that, he added.

Ramsey County is following a kind of hybrid model of consolidation, Ramsey County District Court Chief Judge Kathleen Gearin said. Cases involving challenges to the source code will be assigned to one judge, but only for the purpose of resolving the source code issue. The cases will then be assigned to different judges for trial. Cases not involving source code issues must proceed, she added.

Gearin said that there are discussions ongoing about multi-county proceedings, but Ramsey doesn’t want to wait while those talks run their course.

Chisago and Anoka Counties have also consolidated cases, according to Roseville attorney Charles Ramsay.

Mini-consolidations are already occurring

Rather than wait to see if there is some sort of statewide consolidation, some judicial districts are moving ahead with their own “mini-consolidations” of source code cases.

The 1st Judicial District was the first to consolidate. Judge Jerome Abrams issued a case management order on Dec. 2 setting a final hearing on the source code issue in implied-consent proceedings for May 10-21, 2010. There is also a separate effort to consolidate the criminal prosecutions in the 1st District.

According to Minneapolis
attorney Marsh Halberg, there are more than 500 cases consolidated in the 1st District.

Hennepin County has consolidated about 100 cases and held a hearing on Dec. 11 which turned out to be an informational meeting, Eagan DUI defense lawyer Jeffrey Sheridan said. The Hennepin County judges have decided to follow the 1st District model and have set a status conference for June 2010, after the 1st District’s scheduled hearing, according to Sheridan. Of course, the Supreme Court may intervene before that, he added.

Ramsey County is following a kind of hybrid model of consolidation, Ramsey County District Court Chief Judge Kathleen Gearin said. Cases involving challenges to the source code will be assigned to one judge, but only for the purpose of resolving the source code issue. The cases will then be assigned to different judges for trial. Cases not involving source code issues must proceed, she added.

Gearin said that there are discussions ongoing about multi-county proceedings, but Ramsey doesn’t want to wait while those talks run their course.

Chisago and Anoka Counties have also consolidated cases, according to Roseville attorney Charles Ramsay.

Permissibility of DUI consolidation under rules questioned

Some of the consolidation efforts include criminal DUI prosecutions, but a criminal-rules expert at the University of Minnesota cast doubt on whether the criminal cases can be consolidated under the current rules.

Professor Steve Simon said that there is no rule of criminal procedure allowing for the consolidation of criminal proceedings that do not involve co-defendants.

Each defendant is entitled to a jury trial on his or her own particular facts, he said.

Implied consents are civil proceedings, so the criminal-rules issue will not come up in those cases.