Last weekend members of the Minnesota Source Code Coalition met with our experts to plan our examination of the software in Kentucky at CMI Headquarters. We were to begin by reviewing the hard-bound written copy of the source code which CMI was to provide under the Federal Source Code Settlement.
Upon opening the book, we were shocked to discover that CMI had blacked out 99 pages of the printed version of the software!
Although the federal settlement permitted CMI to redact passwords, our experts tell us CMI blacked out entire pages of the software. The redacted code includes critical information necessary to analyze the software.
Judge Frank ordered CMI “to make printed, hardbound copies of the complete Source Code (subject to the redaction of security and passcode features described herein) available in Minnesota.” (Click for Judge Frank’s entire order).
It is clear CMI is playing games. The company has made it tough enough by requiring our experts to travel to Kentucky to review the actual source code at their headquarters during regular business hours. Given the other limitations, we expect a review to take up to three months.
What other hurdles will CMI place in our path?
I suspect Minnesota judges will not tolerate this type of conduct and correctly determine that the state has not provided the source code to drivers under the Minnesota Supreme Court ruling of State v. Brunner.
As a result, thousands of DWI cases may be dismissed because of CMI’s chicanery.
Over the weekend the Minnesota Society for Criminal Justice (MSCJ) – the organization leading the defense bar’s source code coalition – has retained an additional expert to assist in examining the Intoxilyzer 5000 software.This is in addition to the five experts that were announced in a previous blog entry.The coalition may retainer additional experts in the future.
Harley R. Myler, PH.D., P.E.graduated from the Virginia Military Institute in 1975 with a double major in Chemistry and Electrical Engineering. Following military service as a missile systems officer in the US Army Air Defense Artillery, he attended the New MexicoStateUniversity in Las Cruces, New Mexico and received the M.S.E.E. degree in 1981 and the Ph.D. in Electrical Engineering in 1985. From 1986 to 2001 he was a professor in the faculty of the School of Electrical Engineering and Computer Science at the University of Central Florida in Orlando where he was named researcher of the year four times. In 2001 he accepted the Mitchell Endowed Chair at Lamar University in Beaumont, Texas as well as the chairmanship of the Drayer Department of Electrical Engineering. Dr. Myler has published four books, over thirty refereed papers and over fifty conference articles and holds two US patents. His research and teaching interests are in digital video, HDTV and broadcast technologies.
Mr. McShane points out that these roadside tests provide little information to a jury. Most officers do not conduct the tests properly. If the strict critera are not met as the National Highway Traffic Safety Administration (NHTSA) requires, the results are useless. The manual published by NHTSA says the tests are valid ONLY WHEN:
1. The tests are administered "in the prescribed, standardized manner";
2. The proper "clues" are used to assess the driver's performance; and,
3. The standardized criteria are employed to interpret that performance.
As Mr. McShane reminds us, the manual states, "IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED"!
Most importantly, the blog notes that the testing is based on faulty assumptions.
This is worth exploring. Consider the following:
Q: How many drivers are required to pass such physical tests before the state gives them a license, other than eye testing?
A. Physical Testing is not a general requirement in Minnesota.
Q: If the officer does not know how well a driver will perform without having anything to drink, what baseline does the officer compare the driver's performance?
A: The officer bases a driver's performance on how well the average person would do under ideal conditions.
Officers are trained not to use such testing for everyone. The manual acknowledges the SFSTs are not valid for people more than 50 pounds overweight, for example. But this is frequently ignored by both police and judges. (An example of this can be found in a recent newspaper article, "Judge Rejects Obesity Defense in DWI Trial.."
I strongly encourage anyone who plans on consuming alcohol to prearrange for a sober ride home. For those who don't, start practicing...
Minnesota Knows of Critical Software Flaw; Refuses to Install Patch
A recent Court Transcript provides new information into the Minnesota Bureau of Criminal Apprehension’s (BCA) concealment of critical flaws in the software that runs the Intoxilyzer 5000, the state’s breath testing machine. The transcript was produced as a result of testimony taken in the cases of State v. MH, and MH v. Commissioner of Public Safety in Crow Wing County. This is the first of a five-part series to publish the new revelations.
The August 26, 2009 transcript includes new revelations of the source code/software problem which erroneously accuses drivers of refusing to take an alcohol test. Refusal is a crime under Minnesota’s DWI laws, which I’ve addressed previously in my blog and on my website.
The transcript of the testimony of a BCA forensic scientist reveals:
The BCA is aware of the “potential” problem with the Intoxilyzer rejecting what should be an acceptable sample;
CMI, the Intoxilyzer 5000’s manufacturer, provided the BCA with a software patch to correct the problem;
The BCA did not test or install the corrected version of the software;
The state chose not to test or install the software was to avoid enflaming the “source code” issue;
The BCA employee speculates that cost may have also been a factor in the decision to not test or upgrade the flawed software.
Here is an Excerpt of the transcript:
Q: So we are aware of a problem with the current version of software that would reject what might be otherwise valid breath sample, right?
A: Potentially, not definitely.
Q: And the CMI provided BCA with a fix that purportedly corrected that problem, right?
A: Purportedly.
Q: And instead of testing it, the BCA shelved it, correct?
A: We did not test it, correct.
Q: And one of the reasons was because the BCA did not want to inflame the Source Code issue; is that right?
A: … [T]hat was at least part of the decision, but I don't know that that was the exclusive decision. I mean, there's also the incredible cost and time involved, and doing a software change, and ultimately we've been asking for money for three years for new instruments when we were hoping we would get that.
Q: What would be the cost of fixing this problem with the software?
A: The actual cost is in time and travel.
Q: How much would that be?
A: Several thousand, but I don't know.
Q: Several thousand dollars?
A: Several thousand, yes.
Q: How do you think that balances against people being erroneously deemed a refusal to test?
A: That would be my opinion. My opinion is I don't believe that I can tell you what the value of the State's money is. I don't think I can answer that question.
In order to help educate the judiciary, prosecutors and the public, this week my firm retained the services of Forensic Expert, Professor Alfred Staubus. Professor Staubus is nationally recognized as an expert witness and consultant in the area of forensic toxicology of alcohol and other drugs. He has more than thirty years of teaching, research, and providing public service. He is Emeritus Faculty at The Ohio State University, College of Pharmacy, and President at A & A Consultants, Inc.
We look forward to working with Dr. Staubus and welcome him to Minnesota.
I previously predicted Minnesota Judges to push to combine all of Minnesota's Intoxilyzer Source Code cases into a single case. Yesterday I received confirmation of that.
Personally, I believe consolidation is premature. Until our experts have reviewed the source code, we are unable to confirm the precise nature of the software errors. Consolidation would make sense if the experts find a fatal error in the program that renders the Intoxilyzer scientifically invalid in every case. This would be the case if CMI, the breath test manufacturer, has short-circuited software routines that perform scientific safeguards which are necessary to ensure that every breath test is valid, reliable and accurate. As I tweeted earlier this week, I predict we may find this sort of error in the program.
Short of global, fatal flaws effecting every test, however, the problems we are likely to find will be unique to each person. Such issues may include refusal by conduct, breath volume issues, interferents, GERD, diabetes, lung disease, etc. Consolidation would not be appropriate in the event we find source code errors affecting the test population differently.
I'll report on this blog the details of any consolidation as they emerge.
The Second Judicial District includes all of Ramsey County, with St. Paul as its county seat.
The First Judicial District has already consolidated cases involving the Intoxilyzer software.
Chief Judge Kathleen R. Gearin:
Minnesota Supreme Court Chief Judge Eric Magnuson:
Michigan Attorney, Patrick T. Barone, reminds us all that prosecutors have ethical obligations, even in a DWI case. In his article, A DUI Prosecutor Must Help Prove That You Are Not Guilty, Mr. Barone provides details of prosecutors' ethical obligations to provide the defense evidence of innocence. The article also describes the constitutional role of both prosecutors and devense attorneys.
Mr. Barone is one of Michigan's leading criminal defense lawyers. His article serves a valuable reminder to prosecutors, judges and the public, in Michigan, Minnesota and all around the country.
The home state supreme court of Intoxilyzer Manufacturer CMI, Inc. has rejected a driver's claim for the source code under Kentucky's version of a subpeona duces tecum. The court refused to determine whether drivers are entitled to inspect the software under the constitution's confrontation clause. In doing so, the court reversed the state's lowe court of appeals decision in State v. House.
House does not affect Minnesota litigation. Our State Supreme Court has already ruled that the source code is discoverable in State v. Brunner. In addition, the prcedural rules of Minnesota are much broader than Kentucky. The House court noted that subpeonas are "meant to permit pre-trial inspection of evidence to be admitted at trial. It is not meant to be a discovery device..." Such is not the case in Minnesota.
Today a Washington County District Court Judge ordered the government to return a vehicle seized more than two years ago. The city seized the new "Hummer" when my client was arrested for DWI – refusing to submit to a breath test. This was my client’s second arrest in ten years. He has not been convicted in either case. When a judge overturned the prior license revocation earlier this year, the state no longer had a basis to hold the vehicle in this case.
Although the prosecutor acknowledged that it had to return the truck, she conditioned the return of the vehicle on payment of $800 in storage fees. Although the city had kept the Hummer on its property and incurred no costs, it insisted on making a profit despite losing the case. The judge shot down the government’s position and ordered the city to return the vehicle without costs.
The Minnesota Society for Criminal Justice (MSCJ) – the organization leading the defense bar’s source code coalition – has announced five experts it has retained to assist in examining the Intoxilyzer 5000 software. The coalition may retain additional experts.
Mark Lanterman, Chief Technology Officer, Computer Forensic Services, Inc., Minnesota;
Matt Heinsch, Senior Forensic Analyst, Computer Forensic Services, Inc., Minnesota;
Glenn G. Hardin, Forensic Toxicologist, The Tox Group, Inc., Minnesota.
Mr. Wisniewski has extensive experience in analyzing source code. Mr. Wisniewski issued the Base One report in the Chun case out of New Jersey, where he analyzed the source code for the Alcotest® -- a breath testing device manufactured and marketed by Draeger Safety Diagnostics, Inc.
Mr. Hardin was the supervisor of Minnesota’s Bureau of Criminal Apprehension’s (BCA) toxicology section until July, 2008. The BCA is the agency responsible for Minnesota’s breath testing program.
As of September 8, 63 Private Attorneys have each donated $1,000 to MSCJ’s source code review process. The office of the state public defender has reportedly committed an additional $25,000. All of this is in addition to the tens of thousands the MSCJ membership has already expended leading the defense bar on this issue and the tens of thousands more it intends to commit as well.
Below is a listing of the coalition members. If your attorney is not on this list, he or she probably is not acting in your best interests. Urge them to contact the MSCJ today to become part of the coalition to review the source code.
The fight over Minnesota’s Intoxilyzer 5000 continues to rage on.Now that CMI (the breath test manufacturer) has agreed to permit defense experts access to the breath test machine’s software, the defense bar has assembled a team of experts to analyze the source code.
Analysis will take time, however.I believe we’ll have our expert analysis completed before the end of January.Most courts are pushing cases out well into 2010 to accommodate our schedule.
In Minnesota’s First Judicial District, the judges are consolidating all the source code cases before Judge Abrams.The district is comprised of the following counties:Carver - Dakota - Goodhue - LeSueur - McLeod - Scott - Sibley.
A preliminary hearing will be held in November.Today, Judge Abrams said in court that about one-thousand cases have already been combined.
I believe this is just the start.Judges from other districts have begun to consolidate all of the cases before them.I predict the state will consolidate all such cases soon.Given the complexity of the issues involved and the uniqueness of issues I expect the analysis will reveal, consolidation is not the answer.
HennepinCounty has taken steps to streamline the process to obtain an order for the source code. Chief Judge Swenson has issued a standing order addressing this process. In civil cases -- where drivers challenge the revoked drivers' license -- attorneys must file a Petition for Judicial Review, a motion for discovery of the source code and an affidavit addressing the requirements of Underdahl II and Brunner. In criminal cases, attorneys must file a motion for the source code along with the same affidavit. The county does not require a memorandum. It is important to note that the county imposes time requirements in addition to those in the rules of criminal procedure.
