Attorney General Obstructs Independent Breath Test Examination
The AG-CMI Settlement Does Not Help, But Hinders Drivers' Ability to Inspect the Intoxilyzer Source Code.
The Minnesota Attorney General (AG) last month reached a source code agreement with CMI , the Intoxilyzer 5000 manufacturer, which purportedly requires the Kentucky company to produce the machine's source code. The AG filed suit in federal court in March to force CMI to turn over the source code to the state and Minnesota drivers accused of DWI. In a September 12 press release, Public Safety Commission Michael Campion claimed victory over CMI. "By settling this lawsuit, we accomplish our goal of gaining access to the source code...," said Campion in a press release. The settlement must be approved by a federal court judge.
CMI is not required to produce THE source code. Instead it will produce a document derived from the source code but is stripped of essential compenents, precluding meaningful examination. The agreement also makes any examination cost prohibive.
Minnesota Judges will likely defer to the federal court judge. Should Judge Frank approve the settlement, drivers will be limited to the AG's agreement with CMI and will be denied any meaningful review of the source code. MORE>>>
The AG filed suit not to obtain the source code, but to keep it from us.
The AG/CMI agreement does not require CMI to produce THE source code. Instead, CMI will produce only a decompiled version of the machine language. CMI will present the coding in "hard copy" -- a couple thousand pages bounded. The agreement calls for an "electronic" version. Unfortunately, according to a footnote, this does not require the source code to be produced in its usable "electronic" format capable of executing computer coded "routines." Rather, it is only the hard copy which has been scanned into optical character recognition (OCR) software -- nothing more than a basic word processor to search in plain text.
The text documents will be stripped of key components, e.g., the programmers' comments. Without the comments, it would be like navigating a strange city using a street map without listing street names, a legend and other navigational aids. In short: Worthless.
Also, because the document is not the source code or software of any sort, it cannot "run" the machine. Experts would not be able analyze its performance of even basic routines or functions, or verify it is what CMI says it is.
Any Inspection Under the Agreement Would be Cost Prohibitive
Finally, although the AG claims to have secured this document for "free", the terms of the agreement make review cost prohibitive. Experts could not analyze the source code using methods commonly used in the industry for such purposes. For example, although our experts would conduct some analysis manually, they would be precluded from utilizing analytical software that runs w/o supervision. (Even with this software running 24 hours on several machines, it would take several weeks to analyze the source code here.)
Here the AG/CMI stipulation limits us not only to the medium to be analyzed (hard copy of decompiled, machine language and a searchable text version), but precludes use of any analytical devices other than a CMI provided computer. Evaluations are limited to a secure room within CMI's building and only during regular working hours. Even if a manual analysis were possible, it would take an army of experts years to complete. One can only begin to imagine the cost to house, feed and compensate them for their services.
It is also cost prohibitive in most cases as the AG/CMI stipulated agreement precludes us from pooling financial and other resources, or sharing the results of an expert review from a case in any other matter other than that single case.
Defense Lawyers' Attempts to Ensure Justice
Many defense attorneys knew when the AG suddenly changed its tune and seemingly turned against its long-term ally, that the AG would not act in Minnesotan's best interests, reported Minnesota Lawyer in March. Defense attorneys' suspicions have become reality. Its clear the AG sued CMI not to obtain the source code, but to keep it from us.
In June, the Minnesota Society for Criminal Justice (MSCJ) -- an elite group of 50 attorneys dedicated to fighting for the rights of Minnesotan's -- sponsored member Charles Ramsay's motion to intervene in the federal lawsuit.
As reported by Minnesota Lawyer, the MSCJ filed the motion in June in an attempt to keep the AG and Commissioner honest. "We fear the AG will get the software, but will only be able to turn it over under conditions that preclude a meaningful opportunity to examine it."
The Practical Effect of the Federal Settlement -- Drivers Denied Ability to Inspect Breath Test Software
Despite the potential "permanent injunction" to which the state and CMI consented, the parties cannot legally enjoin citizens from vindicating their right to independent review of the software. Practically speaking, however, judges who take the state's position at face value may be inclined to follow the AG's agreement with CMI. As a result Minnesotans are worse off now than before the the AG filed suit. Open, independent analysis of the breath tests' software is the only way to ensure justice is done.
