Citizens Lose License, Vehicles & Freedom Despite Available Software Fix
Since at least 2004 Minnesota's breath test machine has erroneously found innocent drivers of violating the state's impaired driving laws. A programming error in the Intoxilyzer 5000 software falsely reports drivers of blowing an insufficient amount of air into the machine for analysis. Under state law, a person loses their license for at least one year and even first time offenders are put in jeopardy of serving time in jail, paying huge fines and forced supervised probation. Other penalties may include loss of license plates and vehicle forfeiture. Innocent drivers also face collateral consequences such as loss of job, and can destroy an entire family's way of life.
"Smoking Gun"
Earlier this year I discovered evidence of the problem. The Minnesota BCA alerted CMI, the breath test machine's manufacturer, that software installed in 1994 made it more difficult or even impossible for some people to give a sufficient sample.
See Smoking Gun Email
In response, BCA scientists issued sworn affidavits dismissing the email, claiming the manufacturer had satisfactorily addressed the problem. Implying that innocent people would not be affected, the documents conclude no material changes were made and the test results continue to be sound science.
See Affidavits of BCA Scientists David Edin and Karin Kierzak
"Raging Inferno"
Newly discovered documents seem to refute the BCA's claim. Emails show that in April, 2007, CMI acknowledge the machine's erroneous rejection of otherwise valid samples and provided a corrected version of the software. With full knowledge of critical flaws in the machine's software, the BCA has refused to install the corrected software.
BCA Sources: Commissioner Prevents BCA from Correcting Software
Two credible sources have confirmed this, including the former supervisor of the BCA's toxicology section. One source explained the Commissioner of Public Safety ordered the lab to make no changes to the software to avoid attracting unwanted attention to the breath test machine.
The Source-Code Issue
In 2006 defense attorneys began demanding access to the Intoxilyzer source code, the human readable software which is compiled into a machine readable language. The commissioner believed the lawyers' so-called "source code" challenge would quickly blow over. Any software changes would prolong the litigation and add expense and aggravation.
The "source code" issue didn't blow over. It blew up.
Sources: AG's Office Involved in Cover-Up Conspiracy
According to the sources, the Office of the Attorney General was also involved. The AG office, which provides legal counsel and representation to the Commissioner, either acquiesced or approved of the plan to keep the software as it to avoid exacerbating the source code issue.
See Inferno Documents Showing CMI Knows of Broken Software, Yet Refuses to Upload Fix
AG Files Federal Law Suit
CMI has refused to produce the software for independent analysis. In March, under pressure
from state judges who had dismissed hundreds of DWI cases, the AG filed suit against CMI in federal court. Publicly the state claimed it wanted to obtain the source code from CMI.
Many attorneys, including this author, believed the federal suit was a rouse only to stem the tide of DWI dismissals in state court. A few believed the AG intended to use the suit for other purposes such as to delay any source code ruling until after the state acquired new breath test devices, or to keep defense lawyers from seeing the source code completely.
Motion to Intervene Denied
The "smoking gun" email triggered action. Believing the AG did not intend to act in the best interests of citizens, this author filed a motion to intervene in the lawsuit in early June, 2008. The federal court issued its ruling this week denying the motion.
Last Friday the AG and the CMI announced it had reached a settlement. The AG reported it was victorious, having secured access to the source code and did so without cost to drivers or their experts. A thorough analysis reveals of the agreement does nothing for Minnesota citizens.
Breath Testing Should Cease Immediately Until Fixed
In June after the discovery of the Smoking Gun, this author called for an immediate moratorium of Minnesota's DWI breath test program. In response, the government issued sworn affidavits which are contradicted by newly discovered documents and by very credible BCA sources.
Nothing changed. Innocent people continue to be hurt.
Recent Case Example of Innocent Driver
A good example is displayed here. This person was arrested after a cell phone caller claimed a group of drunk people were about to get into a car and drive. Police stopped my client and eventually brought her to the police station for breath testing.
Under penalty of incarceration, Minnesota DWI statutes require drivers to blow two sufficient breath samples into the machine for analysis. If the machine reports the samples to be deficient, drivers are charged with criminal test refusal - a crime more severe than blowing over .08. Consequences range from one year loss of license to jail. People lose their jobs and it can negatively change their entire way of life.
See How Broken Source Code Adversely Affected My Client's Breath Test Here This woman had only a 0.061% alcohol concentration - well under the 0.08 limit. For her first sample she blew 1.8 liters of air, well over the minimum 1.1 liters. The machine did not accept her second sample, despite apparently providing at least as much air. Although the machine determine her second sample to be 0.064%, it reported her sample "deficient." The state revoked her license, and charged her with Gross Misdemeanor Test Refusal under Minnesota's DWI statutes.
This is a real life example of the ramifications of the state's willful and deliberate disregard for the rights of innocent people. She was well under the legal limit and provided one sufficient sample of air. The machine using defective software deemed her second sample deficient for no apparent cause.
Help!If the state's top prosecutor or her office is involved in this conspiracy to cover up the critically flawed breath test machine, who will put a stop to this?
You can help. Call your state and federal representatives. Tell them to put a stop to this NOW! While we can and should do what we can to stop the carnage on the highways caused by drunken driving, we should not do carnage to the constitution in the process.
Look for
more information on my website.
CMI agreed in the contract to sell and maintain the fleet of instruments and to release the software when ordered by the courts. CMI also expressly agreed that any intellectual property material originating and arising out of the contract would become the sole property of the State. CMI breached both of those obligations.
