Minnesota / Defense attorneys dispute state's agreement with Intoxilyzer company
Minnesotans are being routinely — and, in some cases, wrongly — convicted of drunken driving charges because of a machine whose operation largely remains a mystery, an attorney told a federal judge Wednesday.
"The consequences being meted out by this instrument ... are serious, yet we know precious little about how this machine goes about making its accusation," said Jeffrey Sheridan, a lawyer with the Minnesota Society for Criminal Justice. "We should be able to confront our accuser, and in this case, our accuser is this machine."
He was referring to the Intoxilyzer 5000EN, the primary device Minnesota law-enforcement agencies use to test drivers' blood-alcohol content. A legal fuss has developed over the machine's "source code," the computer language that tells the machine how to interpret a person's breath sample.
Defense attorneys statewide question whether the code works properly, and they sued the state for access to it. The state replied it didn't have the source code and sued the maker, CMI of Kentucky, for it.
The company claims the code is a trade secret but reached a settlement with the state that ostensibly gives a defendant the right to have his expert witness examine the source code. Defense attorneys claim the agreement's provisions for the examination make it virtually useless.
In a hearing before U.S. District Judge Donovan Frank on Wednesday, lawyers for the state and CMI argued the settlement should be approved. Sheridan and lawyers for other groups said the settlement would be bad for the state and worse for defendants facing driving-while-impaired charges.
"People who are not impaired ... are being thrown in jail because this black box says they're guilty of a crime," said Charles Ramsay, a criminal defense attorney representing four individuals who object to the settlement. "This black box decides the guilt or innocence of people in Minnesota. Innocent people are going to jail. They refuse to fix it, and they're covering it up."
Frank told him that was "a very serious accusation you're making."
"I think we could show the court what we're talking about," Ramsay replied.
Assistant Attorney General Emerald Gratz told the judge that the settlement was proper. Also, she said, it would go a long way toward fixing the hodgepodge of rulings by different judges over whether defendants can or should have access to the source code.
With no guiding precedent, some judges have ruled that defendants don't have access. Other judges have ruled they do have access under the Sixth Amendment's guarantee that a person charged of a crime can confront his accuser.
William McNab, a Minneapolis attorney representing CMI, said it was "a fair and reasonable settlement."
"It gives the state more than it could possibly win by continuing with its lawsuit," he said.
Defense lawyers have argued that because nobody outside CMI — not even the state's Bureau of Criminal Apprehension — has seen the computer program that makes the machine work, there's no way to be sure the device is working properly.
Under Minnesota law and courtroom practice, Intoxilyzer results are presumed reliable. But a driver who has had his or her license revoked for DWI-related offenses can challenge that presumption. The person is allowed to get a copy of the test results, a "usage and maintenance report" for the particular machine and results of tests done to validate the instrument's accuracy.
While the agreement allows an expert witness to examine the source code, it also requires the witness to travel to CMI's headquarters in Owensboro, Ky., to view the code in the form of an 1,100-page printout.
Ramsay told Frank that a computer expert told him that under ideal conditions, it would take up to 90 days to analyze the source code, but under the limits in the agreement, it would take 30 years.
"Their solution would deprive Minnesota citizens of fundamental constitutional rights," Ramsay said. "We just want unfettered access to the source code."
After about 2 1/2 hours of testimony, Frank said he would review the agreement and decide which provisions he accepts or rejects. That will take about three weeks, he said. Both sides then will have another chance to decide whether to accept the settlement.
