On April 30, the Minnesota Supreme Court rendered its decision in the long-awaited breath test source code case, State v. Brunner (Underdahl II). At first blush, it appears the victors will be those citizens accused of DWI at the hands of the Intoxilyzer 5000. Ironically, the real victor will be CMI, the for-profit corporation whose recalcitrance provides the source of the DWI chaos in Minnesota.
CMI has never turned over THE source code to anyone, in any state, at any time. Instead it pulls either a “bait and switch” or uses delay tactics to keep from having to produce the source code for the Intoxilyzer 5000. Given CMI’s consistent, defiant stance in every jurisdiction the issue is raised, it appears CMI would rather run itself into the ground, than produce the software behind the Intoxilyzer test results. It is not only spending huge sums for attorneys’ fees, but also has lost the good will and reputation it needs to sell its next generation breath test machine. This stance defies logic; unless it has something greater to lose than its own existence should its secrets be exposed.
In early 2008 a growing number of judges were becoming upset with the state’s lack of effort to obtain the source code from CMI, and were throwing out breath test results when the state could not produce the source code. In March, 2008, the state filed the federal lawsuit against CMI to stem the tide of source code losses in Minnesota trial courts.
Since then, the state has prevailed in the vast majority of source code cases. Any momentum drivers gained at the district court level with a favorable ruling was abruptly halted by the Minnesota Court of Appeals. As a result there was little pressure on either the state or CMI to do anything other than continue the status quo. In fact, the AG did not appeal one source code decision from the trial court, despite losing “hundreds” of cases before the suit and hundreds more being stayed pending Brunner/Underdahl II.
Meanwhile the state wasted a year after filing the lawsuit. Rather than aggressively litigating the matter, it immediately began negotiating a settlement with CMI, without conducting any discovery. Along the way, the state vigorously fought efforts of drivers to obtain the software, both in the federal suit and in the state courts.
After the federal court refused to approve the state’s settlement with CMI in early 2009, the state seemingly switched gears. Judge Frank characterized the AG’s vacillating behavior as a “moving target.” The state gave the appearance it was zealously prosecuting its case in federal court. Instead, the state appears to be setting the case up to intentionally lose, a recent state document indicates.
State v. Brunner, Minnesota Supreme Court
This week the Minnesota Supreme Court issued a clear ruling which requires the state to produce the source code upon a minimal showing of relevance. In the aftermath, however, the Minnesota Attorney General is attempting to minimize Brunner’s significance and argue points clearly settled by Brunner. She continues to commit vast resources fighting its own citizens, standing behind CMI’s Intoxilyzer. Despite a budget crunch and despite Brunner, it appears prosecutors and the attorney general will continue to fight drivers and their attorneys in the state’s courts.
Drivers charged with DWI – some of whom are innocent of DWI – are forced to needlessly spend thousands each fighting CMI’s black box, Despite Brunner.
Courts, already overburdened and facing additional budget cuts, attempt to manage the fracas. Many judges, taught by the state that the Intoxilyzer continues to produce scientifically valid and reliable test results, believe the “source code” issue is merely a technicality devised by creative defense lawyers. Unfortunately, their rulings ignore the rights of drivers and reflect their authors’ misguided beliefs.
Law enforcement has understandingly become frustrated as becomes marginalized in the Intoxilyzer war.
Citizens are losing faith in their government.
CMI sits back as we fight among ourselves. While CMI probably has spent sums in the six figure range on attorney fees in Minnesota alone, that amount probably is a small fraction of the resources our citizens and government has spent fighting ourselves.
Now State v. Brunner has practically shut down breath testing in Minnesota (comments of Dakota County Attorney Jim Backstrom), the state will likely begin an expedited process to find a new breath testing device. Once it does, the impotent Intoxilyzer 5000 will be completely discontinued. The fight over the Intoxilyzer 5000 source code will be moot, eliminating the need for CMI to disclose the software. Until that time, CMI will continue to delay.
CMI will be off the hook.
Sadly, it is least deserving. The state paid CMI seven figures for the 260 machines in the late 1990s. The Supreme Court ruled CMI gave the state ownership of the source code. CMI has breached its contract with the state, depriving not only the government, but drivers of their constitutional rights. Along the way it has stirred the pot, encouraging prosecutors to fight on their behalf. CMI has the sole power to unilaterally end the dispute.
And as I alluded to initially, their actions indicate the source code contains such devastating secrets, that a company would choose corporate suicide rather than risk disclosure. It appears we’ll never know. As a result of Brunner, CMI will be able to keep its secret locked in the source code – which is probably the greatest Brunner benefit of all.