Minnesota finally is using its new breath test machine, the DataMaster DMT. The state has produced no public information about these machines, so my office contacted the Minnesota Bureau of Criminal Apprehension (BCA) on two occasions last week in attempt to obtain documentation for the machine.
BCA employees initially claimed the DataMaster breath test machine was not yet “deployed” and therefore no manuals are available. After we told them that we are aware of several instances where police officers used the machine for DWI testing to revoke several drivers’ licenses, they admitted the machines were being used only in a “pilot program.”
One of my firm’s employees spoke to a supervisor. We specifically requested the DataMaster DMT manual, documents used to train operators and any other documents related to the breath test machine. The supervisor said the BCA would not provide any of the documents, and insisted we go through the Office of the Attorney General and obtain them through formal discovery in an actual DWI case.
This is disturbing. Because discovery is specifically limited by Minnesota’s Implied Consent Act, the BCA’s position requires a court order to obtain the public documents in a DWI case with the Attorney General.
The relevant part of the implied consent law says:
Judicial reviews must be conducted according to the Rules of Civil Procedure, except that prehearing discovery is mandatory and is limited to:
(1) the notice of revocation;
(2) the test record or, in the case of blood or urine tests, the certificate of analysis;
(3) the peace officer's certificate and any accompanying documentation submitted by the arresting officer to the commissioner; and
(4) disclosure of potential witnesses, including experts, and the basis of their testimony.
Other types of discovery are available only upon order of the court.
Minnesota Statute section 169A.53, Subd. 2(d).
This is a change from the way the BCA has traditionally handled such requests. Previously the BCA was much more open to requests for information.
This is not the first time the BCA’s toxicology section has copped an attitude. As Judge Abrams wrote in his source code order:
Those responsible for the operation and maintenance of the [Intoxilyzer 5000 at the BCA] have been defensive and at times outright hostile to the suggestion that problems may exist, which has in turn led to the instant challenge. … A less defensive posture and access to the [information] at an earlier time would likely have increased confidence in results and reduced the need for this protracted litigation.
Minnesota Intoxilyzer Source Code Order #20, P. 115, March 7, 2011 (italics supplied).
While we hope the government learns from its mistakes, it seems the BCA is unaware of the Minnesota Government Data Practices Act which requires disclosure as well. Failure to turn over the documentation under the act could likely result in payment of sanctions.
While we will be filing a formal data practices request this week, we are disappointed the BCA would again entrench itself in secrecy.
What do you think the BCA is afraid of?