Minnesota DWI Breath Test Source Code Update: State & Federal Developments
The state has been in panic mode since last week's Minnesota Supreme Court DWI Intoxilyzer Source Code Ruling.
State Source Code Litigation
The Minnesota Attorney General took the case over from the Dakota County Attorney. On Tuesday, May 5, 2009, the AG's office filed a motion for rehearing. The Solicitor General, who is leading the state’s fight (or fall) in federal court, signed the pleading.
There are two bases for the state’s motion for rehearing: 1) Do you live under a rock? The federal settlement was nixed!; and, 2) Do you know what effect your ruling will have on the state? I’ve attached the motion.
Meanwhile, the Minnesota Supreme Court’s Brunner decision has put the viability of Minnesota’s breath test program in the hands of Magistrate Boylan and Judge Frank. Yesterday the three sides –State of Minnesota; Intoxilyzer manufacturer, CMI; and Plaintiffs-Interveners (four drivers accused by the machine) met for a previously scheduled settlement conference.
Federal Intoxilyzer Source Litigation
Over our objection, CMI and the AG reached a tentative settlement yesterday, May 6. The parties are meeting on Monday, May 11, 2009 to iron out the details. Here is the framework for the state’s and CMI’s settlement (again, OPPOSED by Plaintiffs-Interveners).
- Same format as their settlement last fall, with some changes
- The same (worthless) hard-copy version of what CMI claims to be the source code (actually a reverse engineered version of the machine language) and text searchable pdf will be made available somewhere in the state for review, under yet undetermined conditions;
- CMI claims it will provide the full source code with compilers, makes files, etc., ONLY at their building and under its direct supervision. Represents any review of the source code would “necessarily” have to be a “partnership”.
- Defense expert may bring own computer equipment, but w/o remote internet access capability, and hard drive must be left at CMI after review is completed.
- Defense expert’s report and other materials cannot be shared with other cases, even with same expert and same defense attorney.
- Plaintiffs-Interveners: Opposed
- Review should be at our expert’s lab
- Expert’s Report of source code defects should be public (or at least made available to defense attorneys and their experts). Otherwise it would be cost prohibitive.
Next Step
On Monday, May 11, the three sides are meeting again with the federal magistrate to finalize the details. Judge Frank said he is inclined to rule against the state, in favor of CMI, on the copyright/IP issues (well of course, the AG has conceded it).
I believe any final settlement should be rejected for two glaring deficiencies:
1) The IP issues – the state owns the source code; and,
2) the lack of independent review; the settlement would again deny reasonable access to defense experts.
Check back here to see how this rapidly changing progresses....
