Chuck Ramsay, of our own Ramsay Law Firm, was selected as a 2011 “Attorney of the Year” by Minnesota Lawyer. Selection for this honor was due to both his “leadership in the profession” (Ramsay routinely educates other attorneys on topics relating to criminal law) as well as his instrumental efforts as part of the Consolidated Source Code Trial Team.
This recognition is just the most recent in a long line of awards that Ramsay has received for his dedication to the practice of criminal law, and all of us at Ramsay Law Firm continue to wish him the best in the future. Ramsay will receive the Attorney of the Year award at a banquet held on February 23, 2012.
Common indicia of intoxication include an odor of alcohol, bloodshot and watery eyes, slurred speech, and an uncooperative attitude . . . An officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence.
State v. Kier, 678 N.W.2d 672, 678 (Minn.App.2004) (Emphasis added).
Read the above quote from the Minnesota Court of Appeals. Ignore, for the moment, that the Court incorrectly describes both the odor of alcohol and bloodshot/watery eyes as “common indicia of intoxication” (because they are actually nothing more than indicia of alcohol consumption). Instead, focus on what those two sentences mean, because it’s scary.
In Kier, the Court was stating that anyone with bloodshot, watery eyes who gets behind the wheel of a vehicle is eligible to be arrested for DWI. The only conclusion that we can draw is that evidence of “bloodshot and watery eyes” must be so damning, so convincing, that its very existence renders a driver guilty. Surely such powerful evidence has a strong scientific foundation… doesn’t it?
Well . . . some organizations have actually spoken out about what conclusions can be drawn when an officer sees “bloodshot and watery eyes,” but they sure don’t support using the evidence to convict someone. The National Highway Traffic and Safety Administration (the organization that helped push the legal limit from .10 to .08) did a thorough study of impaired drivers in 1997. Because NHTSA’s goal was to instruct officers on how to detect and arrest drunk drivers, it created a list of eight “cues” that an officer could look for to help determine if a driver was impaired.
Guess what’s not on the list? If you guessed “bloodshot and watery eyes” you are correct. In fact, this “cue” was on the old list, and was actually removed from the list after NHTSA figured out that having bloodshot/watery eyes has as much to do with allergies and people working multiple jobs as with consuming alcohol. If a police officer based his or her decision to arrest on bloodshot watery eyes, the worst thing you can do is just accept that fact - you need to fight it.
The National Highway Traffic and Safety Administration has been telling peace officers - since 1997 - to ignore “bloodshot and watery eyes” as it pertains to allegedly drunk drivers. Yet six years later, the Kier Court was willing to say that this evidence alone was enough to authorize an arrest.
I have no reason to believe that the Kier Court was presented with the 1997 NHTSA study, or that it factored into that decision. That’s why, in my opinion, it would be malpractice not to offer this scientific study into evidence in every case where the State wants to introduce evidence of bloodshot, watery eyes. This study provides the scientific muscle a quality defense attorney needs to attack the longstanding (and incorrect) notion that bloodshot watery eyes are strong evidence that someone is impaired - and to get that evidence suppressed. The reality is that “bloodshot, watery eyes” is lukewarm evidence that someone might be suffering from allergies. . . and, to the best of my knowledge, that is not a crime in Minnesota.
One common indicia of alcohol consumption is “odor of alcohol.” Nearly every DWI police report will start with a mention of this odor, usually as soon as the officer gets within five feet of an alleged drunk driver. And it won’t just be an “odor.” It will be further defined by the officer, usually as a “moderate” odor, sometimes a “strong” odor, and on special occasions as an “overwhelming” odor. Sounds like damning evidence, right? It is, unless (like us) you know exactly how to fight in DUI cases.
Minnesota’s appellate courts certainly believe so. One recent example comes from the case of State v. Koppi (Minn. 2011) where our own Supreme Court ruled in the driver’s favor, but did so in an interesting way. In the Koppi case, the officer (no doubt honestly) described the odor of alcohol as “slight.” The Supreme Court emphasized this characterization, noting that 95% of all drunk drivers exhibit at least a “moderate” or “strong” odor of alcohol (at least, according to the officer - a point we’ll revisit in a moment). The court ruled in Koppi’s favor largely because he only had a “slight” odor of alcohol.
Compare Koppi with State v. Nur (Minn.App. 2011), which dealt with the exact same legal issues . . . but had a dramatically different result. Although both cases involved DWI arrests, the officer in Nur’s case described his odor of alcohol as “strong.” When the court ruled against Nur, it emphasized the difference between a “slight” odor of alcohol and a “strong” odor, and adopted as fact the assertion that 95% of drunk drivers exhibit a “moderate” to “strong” odor of alcohol. In State v. Mahoney (Minn.App. 2011), another case with legal issues identical to those in the Koppi case, the court stated, “the deputy in this case testified that he smelled a “strong” odor of alcohol on Mahoney's breath. This evidence stands in contrast to evidence that Koppi had only a “slight odor of alcohol.” So, it’s clear that the courts put great weight on how strong any alleged odor of alcohol really is.
This just begs the question, “when a police officer describes an odor of alcohol as “slight,” “moderate” or “strong” do they have a scientific basis for doing so?” Put another way, when a person’s breath is described as having a “strong” odor of alcohol instead of “slight,” does that actually mean that the driver is more drunk? Does odor of alcohol provide any meaningful indication that someone is “intoxicated,” or does it just merely mean that they may have consumed alcohol?
A scientific study, supported by the Insurance Institute for Highway Safety and published in a peer-reviewed journal, quickly determined that odor of alcohol is a mostly useless indicator when deciding whether to arrest a driver for DWI. In fact, after conducting their study, the authors actually came up with this conclusion:
Odor strength estimates were unrelated to BAC levels. Estimates of BAC level failed to rise above random guesses.
This study confirmed - via the scientific method - what our attorneys have long suspected. An officer’s description of the odor of alcohol as “strong” is just as useless a fact as if the officer had called it “slight” or “overwhelming.” Someone who really is drunk will be described as having a “slight” odor of alcohol, while someone who is perfectly capable of driving will, as often as not, be described as having a “strong” odor of alcohol.
This type of evidence, which doesn’t even rise to the level of “random guesses,” should never be presented to a jury in a DWI case, and should not even be used to support probable cause to arrest. We continue to educate the courts about how useless this “evidence” really is, but until the day comes that we no longer read about the distinction between “slight” and “strong” when describing odor of alcohol, our only choice is to fight, and fight, and fight!
The mere odor of alcohol about a driver’s person may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony.
Saucier v. State, 869 P. 2nd 483 (Ak. App. 1994) (emphasis added).
Whenever drivers are arrested for DWI, the police will write a report that describes the reasons why, in their opinion, the driver was impaired by alcohol. Nearly every officer will describe an “odor of alcohol” alongside other observations like “bloodshot, watery eyes” and “slurred speech.” Judges, prosecutors, and even some defense attorneys will incorrectly describe these observations as “indicia of intoxication,” implying that each of these confirms that someone is drunk. This could not be further from the truth.
At best, these “indicia” may reveal alcohol consumption – dramatically different that alcohol intoxication. While nobody can truly get drunk without first consuming alcohol, nearly everyone is able to have a drink without immediately becoming drunk. Yet, too often, many consider these “indicia of intoxication” as all the evidence necessary to provide probable cause to arrest a driver, or even to provide proof beyond a reasonable doubt to convict a driver.
How have these “indicia of consumption” (from this point on, I will never again refer to them as “indicia of intoxication,” and you shouldn’t either) gained such widespread use and credibility?
Partially from common usage - every police report I’ve ever seen has described the arrested driver has having smelled of alcohol, while having bloodshot, watery eyes. Some will even “grade” the odor of alcohol (after the driver has already submitted to a test), describing it as “moderate” “severe” or “overwhelming” depending on the circumstances.
Partially by acceptance by the courts - some judicial decisions are based largely on whether or not the arresting officer described the odor of alcohol as “moderate” compared to “slight.”
But, in my opinion, these indicia of consumption have become so commonplace in the courtroom because defense attorneys have not done their job to attack them.
The attack starts by simply calling these observations what they are - indicia of alcohol consumption. By doing so, we also inform the court and the jury what they are not - indicia of alcohol intoxication. But these are just labels, and while labels have power, a true attack requires more muscle. And that’s where the use of hard science comes into play.
Too many attorneys try to use the “law” to trump the State’s “science.” That’s rapidly changing - nowadays, its far more important to fight science with science, and to shed light on government practices that have gone unchallenged for too long, convicting too many innocent drivers.
Coming up, we’ll discuss some of the most overblown and overemphasized indicia of consumption that find their way into the courtroom: Odor of alcohol, bloodshot/watery eyes, and some of the more ridiculous “field sobriety tests.” And then we’ll show you exactly how each and every one is refuted by hard science.
And finally, we’ll explain why this is probably the most important topic imaginable for the future of DWI defense in Minnesota.
While we’re already preparing for future challenges to Minnesota’s new breath testing device, the Datamaster DMT, today was a day where our focus was squarely on the outdated Intoxilyzer 5000EN (which is still being used throughout most of Minnesota).
The Source Code Coalition spent weeks preparing for today’s argument, capping an effort that took years of complex litigation and countless hours of legal wrangling. Derek Patrin was selected to present the Coalition’s arguments to the Supreme Court today, and we will post a link to the video of that argument once it is available.
In the meantime, the Supreme Court has taken the entire matter under advisement, and will be issuing its decision within the upcoming months.
You can view all of the briefs leading up today’s argument here.
UPDATE: Click here to view the video of the arguments before the Supreme Court.
Today the Minnesota Supreme Court has released the date for En Banc Oral Arguments regarding the consolidated Source Code litigation. Oral Arguments have been scheduled to be heard on December 1, 2011, at 9:00 a.m. at the State Capitol Building.
View all the briefs leading up to the Oral Arguments here.
The last source code brief is in! The Source Code Coalition filed its reply brief on behalf of thousands of Defendants and Drivers with the Minnesota Supreme Court on October 17, 2011. This is the last of the briefs to be submitted to the Minnesota Supreme Court on this issue. We anticipate the Supreme Court will schedule a date for oral argument soon.
Here are the other briefs filed in this matter pending before the Supreme Court:
Under a shoot-first-ask-questions-later philosophy, the Minnesota Commissioner of Public Safety can take away drivers’ licenses without first conducting a hearing on the propriety of the revocation pursuant to the Minnesota Implied Consent Act. Although drivers may challenge the license revocation in court, it can take months before the case goes to court. Even in those cases where a judge ultimately orders license reinstatement, the damage is already done. There is no way to “undo” the loss of a license during the wait. But a major overhaul to the law may have so radically changed the legal landscape that the law is no longer constitutional.
Previous Constitutional Challenges to Minnesota’s Implied Consent Law
The Minnesota Supreme Court has found the basic premise of pre-hearing license revocation to be constitutional. In balancing the interests of public safety against the rights of individual drivers, the Minnesota Supreme Court upheld in Heddan v. Dirkswager (1983) that there were sufficient procedural safeguards to protect the private interest of the driver. At the time those protections included (1) the relatively short revocation period; (2) the immediate availability of a work permit; and (3) a speedy hearing.
After the legislature tinkered with the statute, the Minnesota Supreme Court warned the legislature in the 1994 Davis case not to further erode the procedural safeguards or it would strike down the law as unconstitutional. Although the court upheld the statute, it was troubled by the fact that “a court cannot undo an erroneous revocation,” because “full retroactive relief cannot be provided” and “even a day’s loss of a driver’s license could inflict grave injury upon a person.”
Minnesota Supreme Court: Law Violates Constitution
While it was not “prepared at [that] time to conclude that the legislation in question violate[d] either federal or state due process guarantees,” in 2003 the legislature removed drivers’ right to a prompt hearing. For the first time, the Minnesota Supreme found the law unconstitutional in Fedziuk v. Commissioner of Public Safety (2005), holding that that the law offended the constitution’s right to due process.
New, Radical Changes
Despite the Supreme Court’s early warnings and then later finding the Implied Consent Act unconstitutional, the 2010 legislature radically changed the implied consent law. In doing so, the legislature increased the duration of a first time misdemeanor revocation from 90 days to one year and completely removed the right to a work permit for those with an alleged alcohol concentration of .16 or more.
The legislature attempted to give the appearance of softening the blow to drivers by providing for “zero day eligibility” for ignition interlock. This is just a mirage. First, the administrative process is so unwieldy the Department of Public Safety has been unable to provide anything close to immediate reinstatement, even with the installation of the interlock devices. Second, the cost is prohibitive for most. While the costs vary, drivers must pay hundreds of dollars in fees for installation and monitoring to private carriers. They must pay a $680 reinstatement fee. Finally, they must fork over a four digit amount in advance for a one-year, non-cancellable insurance policy. Presumably, even if a court finds the revocation improper, it would be impossible to undo the erroneous revocation and provide full retroactive relief. Not only would the interim loss of the license inflict injury, but the driver would lose thousands in costs of the ignition interlock program and non-cancellable insurance.
The Risk of Erroneous License Revocation is Higher Today Than Ever
Finally, the risk of erroneous deprivation is higher today than ever. The state continues to use the Intoxilyzer 5000 for DUI breath testing, which does not always work properly according to the judge in the consolidated source code case. Or, it relies on DUI urine testing using procedures not accepted by the scientific community – and not used at all in any other jurisdiction in the entire country.
Our firm is raising this issue in almost every DUI case. There is no doubt it will eventually come before the Supreme Court. Will it find the law unconstitutional?
Currently, the consolidated source code litigation, originally presided over by Judge Abrams, is up on appeal before the Minnesota Supreme Court. This has caused more than a little confusion in the various district courts, as each judicial district tries to decide how to proceed with DWI cases based on Intoxilyzer 5000EN breath test results.
Most counties seem to be of the opinion that they need to stay all proceedings pending a final decision by our Supreme Court. In our opinion, this is not only the smart option, but the only legal one. Minnesota Rule of Civil Appellate Procedure 108.01, subd. 2 makes it clear that our lower courts are prohibited from doing anything to affect the current source code appeal - which includes setting cases on for trial (cases that could then be “re-appealed” and effectively double the judicial system’s workload).
While most counties have followed this route, there are some exceptions - notably Anoka and Ramsey counties. In Anoka County, all of the previously stayed cases were returned to active judicial calendars after Judge Abrams issued his order. However, after the Minnesota Court of Appeals granted review of that order and the Supreme Court granted expedited review, Anoka County chose to reverse course - and continued to stay all Intoxilyzer breath test cases.
Ramsey County, on the other hand, who also originally stayed all of its Intoxilyzer cases, recently issued an order lifting that stay and ordering all cases to proceed. In light of Rule 108.01 and the currently pending motion to stay proceedings pending in front of the Supreme Court, it is unclear how much progress will be made on these cases . . . but as of today, every pending Intoxilyzer case is being pushed back on to Ramsey County judicial calendars.
It will be interesting to see how the situation in Ramsey County progresses. Maybe Ramsey County will reverse course in the same way that Anoka did (the coalition emailed the Ramsey County Court objecting to the new order). Or maybe Ramsey County will set hundreds of cases for trial, only to be ordered by the Supreme Court to cancel everything and wait for the conclusion of the appeal. Only time will tell, but for now, defendants and attorneys with Ramsey County DWI cases should be prepared to resume their cases while the final determination of whether Intoxilyzer test results are admissible is still up in the air.
The Minnesota Supreme Court has accepted accelerated review of the appeal that was made of Judge Abrams' Order as part of the consolidated Source Code litigation. This means that rather than arguing this case to the Minnesota Court of Appeals before appealing to the Minnesota Supreme Court, the case is being immediately sent to the highest court in the land. This should ensure the speediest possible resolution to the consolidated challenge to the Intoxilyzer 5000EN.
Yesterday the Commissioner of Public Safety filed a Petition for Accelerated Review with the Minnesota Supreme Court. This Petition follows the April 27, 2011 Order of the Minnesota Court of Appeals granting the Petition for Discretionary Review which was filed by counsel for Minnesota Petitioners and Defendants.
The thousands of consolidated DWI cases stemming from tests on the Intoxilyzer 5000EN, previously heard by Judge Abrams in the First Judicial District, have officially been accepted for review by the Minnesota Court of Appeals.
In an Order filed April 28, 2011, the Court of Appeals held that there were “compelling reasons” to grant review of Judge Abrams’ Order. While this case might ultimately be forwarded directly to the Minnesota Supreme Court, we are currently preparing to present our arguments to the Court of Appeals.
Judge Abrams ruled at the conclusion of the consolidated source code hearings that the Intoxilyzer cannot reliably determine deficient samples. Unlike most Intoxilyzer test results, which were deemed admissible, Judge Abrams ruled that test results reporting a sample as “deficient” should not be allowed into evidence. Specifically, he stated that:
In cases in which the Intoxilyzer 5000EN ... reported a “Deficient Sample,” the Source Code of the instrument does impact the reliability, solely, of this result. Evidence of such cases of a “Deficient Sample” test report should not be allowed unless other evidence exists which provides reasons and/or observations of testing which supports the sample being deficient.
Judge Abrams explicitly found that the Intoxilyzer cannot properly determine a deficient sample - and therefore does not support a charge of test refusal. In the order, it appears that the door has been left open for the government to bolster this faulty test result with “other evidence” that the test subject “refused” to provide a valid sample. However, the actual state of the law in Minnesota says the opposite - under Minnesota law, only a breath test machine that determines a deficient sample, not the officer.
Minnesota’s DWI laws make it a crime to “refuse” alcohol testing, which is defined as a “failure of a person to provide two separate, adequate breath samples in the proper sequence . . .” Minn.Stat. § 169A.51, subd. 5(c) (2010). A sample is defined as “adequate” if, “the instrument analyzes the sample and does not indicate the sample is deficient.” Id.,subd. 5(b). A plain reading of these statutes means that only the Intoxilyzer test result, and not the opinions of an officer, determine if a person actually “refused” to provide an adequate sample.
We know, because we recently won on this issue in front of the Minnesota Court of Appeals, in Hansen v. Comm’r of Pub. Safety. In Hansen (a “deficient sample” case) the trial court judge ruled that the source code was irrelevant, because “other evidence” besides the Intoxilyzer test result proved that our client refused to provide a valid sample. We disagreed, and appealed. The Court of Appeals reversed the trial judge’s decision in favor of our client.
In Hansen, the Minnesota Court of Appeals said,
We have held that an identically worded statute “makes it clear that the Intoxilyzer, not the police officer, is to determine the adequacy of a breath sample.” Genia v. Comm'r of Pub. Safety, 382 N.W.2d 284, 286 (Minn.App.1986). And we found no statutory authority that, once the breath test began, “a refusal can be based on an officer's conclusion that a driver is not making a good-faith effort to provide an adequate sample.” Id.
Hansen at *4.
So, it’s clear that only a breath test machine (for now, the Intoxilyzer 5000EN) can determine whether a breath sample is deficient. Any officer’s subjective opinions are irrelevant. What this means is that the government can only prove a “refusal by conduct” charge by presenting a test result that lists the sample as “deficient.” And as long as the State continues to use the outdated, broken and error-prone Intoxilyzer, any “deficient” result cannot be admitted into evidence.
Judge Abrams noted that Minnesota officials and the BCA have been aware of the broken Intoxilyzer since at least 2006, but have refused to install corrected software.
The slope detection software … does reject under somecircumstances samples which are valid. … In situations where this result has been reported due to slope acceptance criteria in the 240 version of the software, the BCA could have implemented corrective software but chose not to update the instruments. This conclusion is confirmed by the testimony of the BCA witnesses.
Now that Judge Abrams has made official findings that the Intoxilyzer 5000 software does not work properly and that the BCA has a fix to correct the problem, it would be reasonable to believe we would stop using these broken machines for DWI alcohol testing.
[T]he BCA was aware from the fall of 2006 onward that a change in the Source Code was made that caused, under some circumstances, previously acceptable breath samples to be rejected. This software, version 240, continues to be used with knowledge of this problem and without change or correction by the BCA.
Surprisingly, Minnesota continues to use these fatally flawed machines to revoke drivers’ licenses and put innocent people in jail.
Why?
Perhaps the answer lies in the arrogance of state officials responsible for the use of the Intoxilyzer 5000EN. According to Judge Abrams:
There is a general perception that perfection and flawless operation is present in the Intoxilyzer and its test results. Those responsible for the operation and maintenance of the device have been defensive and at times outright hostile to the suggestion that problems may exist….
Luckily, we now have the evidence we need to suppress every Intoxilyzer test that reports a “deficient sample,” no matter how long the State continues to use this broken machine. Be sure to stick around for tomorrow’s blog, where we detail how every case where the Intoxilyzer reported a deficient sample should be dismissed . . . and why.
Minnesota continues to use Intoxilyzer 5000 Despite Hundreds of Defective Breath Cases Annually.
Last month, Judge Abrams issued his consolidated Intoxilyzer source code order. In a case directly affecting more than 4,000 Minnesota DWIs – and thousands more indirectly – the court decided that the Intoxilyzer, while suffering from many defects, is not so flawed as to prevent the test results from being admitted into evidence in most cases. In other words, the test results are “close enough for government work,” but drivers’ attorneys are still free to present evidence attacking the results (even this conclusion is currently under appeal).
Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating that, “In cases in which the Intoxilyzer 5000EN … reported a ‘Deficient Sample,’ the Source Code of the instrument does impact the reliability, solely, of this result. Evidence in such cases of a ‘Deficient Sample’ test report should not be allowed ….”
In the order’s Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.
There is one limited situation, as discussed earlier, in which the labeling of a sample as “deficient” arises from multiple causes. At least one of these causes is a consequence of the Source Code's instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.
Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA’s own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!
We’ve been striving for years to bring these issues into the public spotlight. Now, with Judge Abrams’ order, we finally have the evidence we need to successfully debunk the myth that every driver who provided a “deficient sample” was somehow at fault.
Of course, now that we’ve unmasked these fatal errors in the source code, the State will stop using the Intoxilyzer . . . right? If only life were that simple: stay tuned for tomorrow’s blog, explaining just how long the State has known about these errors, and why they plan to keep on using the broken Intoxilyzer, regardless of its known flaws.
Then be sure to check back on Thursday, when we will discuss exactly why Judge Abrams' order should results in the dismissal of almost any case where a "deficient sample" was reported.
Today, the Office of the Minnesota Attorney General on behalf of the Commissioner of Public Safety and Prosecution Liaison Counsel for the State of Minnesota filed responses to the Appeal of Judge Abrams’ Order. The defense trial team appealed Judge Abrams’ Order on March 28, 2011.
Yesterday the defense trial team filed an appeal of Judge Abrams Order regarding the statewide consolidated challenge to the Intoxilyzer 5000 based upon deficiencies in the Source Code.
Today Judge Abrams issued his ruling regarding the statewide consolidated challenge to the Intoxilyzer 5000 based upon deficiencies in the Source Code.
You can view the entirety of Judge Abrams’ Order here. Because the Order is over 100 pages long, we’ve also broken it up into sections that are more easily downloadable.
As we said, this Order is over 100 pages long, and will take some time to fully digest. However, a causal reading of the Order makes at least two things clear:
1.Judge Abrams does appear to have ruled that the Intoxilyzer 5000 produces admissible test results.
2.Judge Abrams also appears to have ruled that a “deficient sample” test record is not sufficient evidence to prove that someone “refused by conduct” to submit to a breath test. This has been our claim for years, and we’re happy to see that Judge Abrams agrees.
Stay tuned: we should have a more detailed analysis of this Order, and the likely consequences from the Order, posted soon.
The briefs are in! Today both the state and drivers submitted written closing arguments to Judge Abrams in the consolidated breath test case. The Court will render its decision within 90 days.
For years now, we’ve blogged about problems with the Intoxilyzer 5000 - and one problem in particular. In a typical scenario, a driver is arrested for DWI and told that they have to submit to a breath test. They try - and try, and try - but the machine will not accept the sample, and ultimately reports a “deficient sample.” These people are charged with the crime of Test Refusal (always a gross-misdemeanor, sometimes a felony).
In court, the arresting officer will usually say that the driver was trying to “fool the machine” by blowing around the straw, blocking the straw with their tongue, or not actually blowing any air. This may be true in some cases, but in our experience, its more likely that the driver WAS trying to give a sample - and the machine still rejected it, for reasons unknown.
The question is “who should the judge trust?” The arresting officer, the driver, or the machine? The answer matters, because if the court chooses to trust the officer, the driver is going to lose; if the judge decides to “trust” the machine, it means that the defense needs to have the opportunity to examine that machine’s source code - and the driver can win.
We recently won a huge case at the Court of Appeals that helps settle the matter. In Hansen v. Commissioner of Public Safety, we convinced the Court that it takes more than the testimony of the arresting officer to convict someone of test refusal - the machine itself needs to be analyzed. This is a potentially huge win for our clients and for anyone else charged with “refusal by conduct.” It means that the Courts are finally beginning to accept what we’ve said all along - the Intoxilyzer is not a perfect machine, and one area where it is prone to failure is when it deems otherwise-valid samples “deficient” for unknown reasons.
At the end of last week, the State finished presenting its evidence in support of the continued use of the Intoxilyzer 5000 to prosecute Minnesota drivers for DWI. All of the evidence has now been submitted to Judge Abrams; it is expected that he will issue an order in early 2011.
It was a long, hard road to get to this point, and far longer than it had to be - if the State had complied with our basic, standard discovery requests years ago, this challenge to the Intoxilyzer would have long since been finished. Instead, the State fought us tooth and nail the entire way: fellow members of the trial team have been to the Supreme Court not once, but twice, demanding access to the software that controls the Intoxilyzer. Our firm spent countless hours litigating the same issue in Federal Court, doing everything we could to ensure that we received actual access to the source code, rather than the sham settlement that was originally reached between the State and CMI.
Once the groundwork had been laid, we pulled together a truly impressive coalition of defense attorneys to help foot the enormous costs that go into a detailed review of an embedded system like the Intoxiliyzer. And now, finally, after years of preparation and litigation, the evidence we’ve been demanding for years has been presented in open court, and we’ve reached the calm before the storm.
We’ll be filing our final written arguments by the end of January. Given the volumes of testimony presented, it’s likely that Judge Abrams won’t issue a final order until April of 2011. It’s a waiting game now, with over 4,000 cases at stake, and we’re optimistic about the outcome.
Today, the members of the trial team for the Source Code Coalition finished presenting our evidence. At stake are over 4,000 DWI criminal and civil cases that rely almost entirely on test results produced by the Intoxilyzer 5000's “source code.”
Once we finished presenting our evidence, the State made a motion for a directed verdict - in effect, claiming that the defense failed to demonstrate that the Intoxilyzer 5000 is an error prone, faulty machine. Judge Abrams quickly ruled in our favor, and we have indeed made a prima facie case that the Intoxilyzer does not produce valid and reliable results in all cases.
This ruling is a great victory for both the Coalition and for all Minnesota drivers, and underscores the fact that this machine is indeed flawed. We’ve said for years that there are problems with this machine, and have repeatedly asked for nothing more than an opportunity to prove our case. Now we’ve done our part, and proved our case- and the State has no choice but to try and rebut the evidence that we’ve presented, because otherwise the Intoxilyzer test results would be deemed inadmissible in court. The State is going to start attempting to meet that burden this afternoon.
We expect the State to spend most of next week trying to overcome the evidence we’ve presented. While the judge hasn’t issued a final ruling in this case (and likely won’t do so for some time) today’s ruling in our favor is a promising sign of things to come.
As members of the trial team and lead counsel for the consolidated challenge against the Intoxilyzer 5000, we’ve spent the last few months working overtime in preparation for the hearing that started on December 8, 2010. We’ve already presented three days of expert testimony, and aren’t even halfway done - but we’ve already presented substantial evidence that calls into question the “scientific results” that come out of this machine.
1) The Intoxilyzer does not, to a reasonable degree of scientific certainty, accurately report alcohol concentrations. For example, an Intoxilyzer test result of .08 does not actually mean, and cannot be used to show, an alcohol concentration of .08.
2) Numerous scientific safeguards that are supposed to ensure that Intoxilyzer results are valid and reliable simply don’t work. This includes some shocking revelations, including the fact that the Intoxilyzer just flat out cannot properly measure breath volume, despite claims to the contrary. The Intoxilyzer also reports the presence of alcohol when a totally “clean” air sample is provided. Basic safeguards, like the ability to detect interferents (non-alcohol substances that show up as alcohol), the ability to detect radio frequency interference, and various “self-tests” all fail to work as advertised.
3) Essential components of the Intoxilyzer can be disabled without sending up any red flags. This includes heating elements and interferent detectors that are essential to providing consistent, reliable results.
4) The “slope detector” is shaping up to be about as faulty as we expected. Many people are being charged with “test refusal” because source code errors are reporting otherwise valid samples as “deficient.”
Numerous other flaws have been exposed, all leading towards the final question: can we trust this machine to ensure that our roads remain safe, or is it little more than a “random number generator” that is sending innocent people to jail?
This week we expect to get even more information as we examine several experts from the Minnesota Bureau of Criminal Apprehension, as well as experts in breath testing from other States. Stay tuned!
After years of carefully crafted discovery requests, and a lengthy lawsuit in Federal Court, the source code to the Intoxilyzer 5000EN was finally released to the experts hired by the Source Code Coalition.
The Supreme Court ordered a state-wide consolidated hearing be held on the validity and reliability of the Intoxilyzer. That hearing is scheduled for December 8, 2010 before the Honorable Judge Abrams, district court judge for the First Judicial District.
As a member of the trial team and as lead counsel for this complex and controversial hearing, we’ve been working overtime to prepare all of our experts and exhibits for what is bound to be an eye-opening hearing. It is expected that Judge Abrams will issue a final decision on this matter in early 2011. It is also likely that his decision will be appealed by at least one of the parties to the consolidated case, creating considerable uncertainty in what the future status of the Intoxilyzer will be.
One Hennepin County judge wrote in a source code order that it may be malpractice for a lawyer not to seek breath test software. That remains to be seen and depends primarily on the outcome of our experts' analysis. Practically speaking, however, the source code coalition has prepared matters to point where it requires little effort from attorneys to take advantage of this issue.
The upside is obvious -- drivers' DWI breath tests could be thrown out. There is little down side -- a minimal contribution from each lawyer and a delay necessitated by the review.
So the question is: is your lawyer a member of the Minnesota Intoxilyzer 5000 Source Code Coalition.
If not, get another lawyer.
I've listed of all members below as of today. In addition to this, all state public defender cases are included.
A special thanks goes to Pennsylvania attorney, Justin McShane of the McShane Firm, LLC. Although Justin represents none of the Minnesota litigants, he generously donated a hefty sum in an effort to support the cause. Justin, recognized as one of the top criminal defense attorneys in the country, probably has more scientific knowledge in the criminal defense arena than any other lawyer.
Once others learn of Justin McShane's leadership here, other lawyers from around the country will soon follow his lead with their kind contributions.
Today, Judge Abrams issued an order extending the timeline for the consolidated Minnesota Intoxilyzer 5000 source code cases. In his order, the judge set the final hearing to start on December 18, 2010.
The source code coalition requested this extension about a month ago, due to delays caused by CMI, the manufacturer of the breath test machine. Most troubling was the fact that CMI recently notified the Source Code Coalition that it had provided us with the “wrong” source code. Instead of reviewing the actual source code used in Minnesota, coalition experts had been reviewing different code for nearly two months at CMI’s headquarters in Owensboro, Kentucky.
If this wasn’t absurd enough, our experts also discovered the state had improperly “burned” the source code onto the Intoxilyzers’ microprocessors. It appears that in its haste to convict Minnesota drivers, government scientists included unintended machine code on the chips which govern the machines’ testing of Minnesota drivers. Our experts now have the added task of determining if and how this unintended code affects the validity, reliability and accuracy of DWI breath tests – tests dating all the way back to 2004.
To date, nearly 3,000 DWI breath test cases have been consolidated by the Minnesota Supreme Court. Some expect that number to rise to more than 5,000 cases before the end of the year.
The latest numbers are in. As of August 4, 2010, nearly three thousand cases have been consolidated in Minnesota's consolidated source code challenge. A total of 3,830 are attempting to consolidate according to Christina LeClaire from the Minnesota Courts.
The number of cases will continue to climb as long as some police departments insist on using the beleaguered machine. I predict 5,000 cases will be at issue before the court makes its ruling. I estimate the court will be unable to make its ruling until 2011.
If the State replaces the Intoxilyzer 5000 with the Datamaster, doesn't this start everything all over again? Requesting the source code. Why doesn't the State just eliminate the breath test machines altogether and strickly go with blood tests?
Attorney Dan Koewler responds:
Scientifically, it would make perfect sense to discard breath testing altogether, and rely strictly on blood sample testing. Breath testing has numerous problems completely independent of possible software errors. That being said, there is no way that the State would discard such an “easy” test method just because of a few measly scientific concerns. Remember, the State measures its success rate by how many convictions it can rack up, and it wants those convictions as fast as possible.
Additionally, National Patent (the manufacturer of the Datamaster) is a drastically different creature than CMI (the manufacturer of the Intoxilyzer). Datamaster has a track record of actually working with defense attorneys, rather than stonewalling them. In fact, we already know that their source code is available – for about $250, they’ll put the code on a disk and send it directly to us. Compare that attitude with CMI, where it took four years of litigation and hundreds of thousands of dollars just to get a chance for our experts review some of the source code, in a remote location, under some pretty ridiculous terms.
Given National Patent’s history of being rather transparent, there likely won’t be much to gain by a protracted source code challenge. The real challenges will remain with how the State chooses to implement the Datamaster; our State has spent years pretending that its breath test machines were flawless, with the full support of CMI. With National Patent, I expect the State will have to find better explanations for its failure to have a regular maintenance schedule for its machines, among numerous other scientific safeguards that have been ignored with the use of the Intoxilyzer.
We’re defense attorneys – its we do, and what we love. I know that there will be numerous challenges to the Datamaster’s integrity, but at this point, I’m just not sure that source code challenges will be one of them.
The State’s decision to give over $1.5 million dollars to a company other than CMI, Inc. of Kentucky (the manufacturer of the Intoxilyzer) is hardly surprising to us, but is an interesting decision that speaks volumes about the State’s lack of faith in the Intoxilyzer machine.
The State has repeatedly claimed that it has absolute faith in the accuracy, validity, and reliability of the Intoxilyzer 5000. However, it’s difficult to believe these claims when the State made the clear decision to abandon the Intoxilyzer altogether (they could have purchased the “state of the art” Intoxilyzer 8000).
The State has requested discovery of all independent alcohol tests taken in conjunction with Intoxilyer tests at issue in the consolidated source code matter.
While the coalition opposes this request, we will need them in the event Judge Abrams orders the coalition to turn them over to the state as part of either the consolidated civil implied consent cases or the consolidated criminal cases.
Please send any independent test results taken in your cases and the corresponding Intoxilyzer test result to Liason Counsel Lee Orwig, by email, fax or mail:
Today CMI, the Intoxilyzer manufacturer, faxed a letter to Federal District Court Judge Frank, Magistrate Boylan and Judge Abrams disclosing "that the software that is presently installed in the ... Intoxilyzer 5000EN instruments in service in Minnesota does not ... match the 75_0240 software that was preserved at CMI at the time it was created for use in Minnesota."
CMI admits in the letter that neither CMI nor the State knows the reason for the difference.
The Honorable Donovan W. Frank
United States District Court
District of Minnesota
316 North Robert Street
St. Paul, Minnesota 55101
The Honorable Jerome B. Abrams
Scott County Courthouse
200 Fourth Avenue W.
Shakopee, Minnesota 55379
The Honorable Arthur J. Boylan
United States Magistrate Judge
334 Federal Building
316 N. Robert Street
St. Paul, MN 55101
RE: State of Minnesota v. CMlof Kentucky, Inc.
Court File No. 08-CV-603 (DWFIAJB)
In re: Source Code Evidentiary Hearings in Implied Consent Matters
Consolidated File No. 70-CV-09-19459
In re: Source Code Evidentiary Hearings in Criminal Matters
Consolidated File No. 70-CR-09-19749
Dear Judges Frank, Boylan and Abrams:
As the Courts may recall, the Intoxilyzer 5000EN breath-alcohol test instrument contains two
memory chips (EPROMs), which contain software that performs distinct functions within the
instrument. One EPROM, often referred to as the "master," contains software identified as
"1408.62." The other EPROM, sometimes called the "slave" or "side processor," is loaded with
different software, identified as "7502.40" or "75_0240."
In accordance with the July 16, 2009 Consent Judgment and Permanent Injunction, CMI has
been providing Authorized Minnesota litigants access to all Source Code files for the current
version of Intoxilyzer 5000EN software (1408.62 and 75_0240) in both native electronic and
printed, hardbound (redacted) book format.
However, it has recently come to CMI's attention that the software that is presently installed in
the side-processor EPROMs in the Intoxilyzer 5000EN instruments in service in Minnesota does
not identically match the 75 0240 software that was preserved at CMI at the time it was created
for use in Minnesota.
At present, neither CMI nor the State is certain of the cause of this difference, or of its impact, if
any, on the Source Code review currently underway. I assure the Courts that CMI and the State
are working cooperatively and diligently to resolve this issue as quickly as possible.
Very truly yours,
WINTHROP & WEINSTINE, P.A.
William A. McNab
WAM/lm
cc: Counsel of RecordiLiaison Counsel (via e-mail)
Anyone will be upset after being arrested for DWI. They are usually put in handcuffs, transported in the back of a squad car to a nearby (or not-so nearby) police station, and then told to submit a sample of blood (ouch) urine (embarrassing) or breath (inaccurate). After that, many are thrown in jail; others post as much as $12,000 in bail, while others need to find a ride home and a way to get their car out of an impound lot.
After this incident has robbed them of their dignity, many are then even more shocked to discover that they are being charged with not one crime, but two, based off of this arrest. While this seems illegal, it’s actually common, and a good defense attorney can work this to your advantage.
There are two types of DWI Crimes in Minnesota: 1) “driving while impaired” and 2) “per se intoxication.” There is only one real difference between these two crimes, and that is what type of evidence the State can use to prove guilt.
Driving while impaired means just that: the State must prove beyond a reasonable doubt that you were impaired by alcohol or drugs while you were driving. The type of evidence in this type of case ranges from performance on field sobriety tests to the arresting officer’s “opinion” of your level of impairment to the reason the police office stopped your vehicle. Note that for this type of offense, it’s not necessary to prove an alcohol concentration above a .08 - sometimes a driver’s alcohol test result isn’t even relevant.
Per se intoxication, on the other hand, doesn’t mean that a driver was a danger to anyone on the road. In fact, someone who is per se intoxicated might not even feel the effects of what they drank. Instead, per se intoxication just means that someone’s alcohol concentration was at or above .08, as measured anytime within two hours of driving. You can perform perfectly on a field sobriety test and enunciate every word flawlessly, and still be guilty of per se intoxication - if the State has a test result that “proves” you were above a .08.
Back in the day, the only offense drivers could be charged with was “driving while impaired.” These are the types of drivers that can be the most dangerous. However, in close cases, they are also the types of drivers that are hardest for a prosecutor to convict.
Because it can be hard to convict an otherwise safe driver of driving while impaired, the legislature chose to pass a per se law and create a level of alcohol concentration that automatically renders someone “drunk.” This use of “science” makes it far easier for prosecutors to get convictions. Obviously, any prosecutor would rather just flash a test result in front of a jury, say “this number is higher than .08," and get a conviction, than actually prove that someone was impaired!
Of course, these per se laws were both a blessing and a curse for prosecutors. A blessing, because now it’s so much easier to convict people who otherwise do not appear impaired - just look at the test result! However, it’s also a curse, because if they don’t have a test result to rely on, most prosecutors won’t even bother to litigate a driving while impaired case.
That’s where we come in: we often gear our defensive strategy towards getting that test result suppressed, which forces the prosecutor to try their case the “old fashioned” way. Whether that test result is an example of junk science, flawed logic, or the secretive workings of the incomprehensible Intoxilyzer 5000 breath test machine, if there is a way for us to get it suppressed, we will get it suppressed. And without a test result, the vast majority of prosecutors will lose interest in gaining a conviction, and seriously consider settlement or dismissal.
You can feel stone sober and still commit the crime of driving while per se intoxicated. Winning your case means hiring an attorney who knows every possible way to attack the State’s best evidence - a test result - and get it suppressed. If you’ve been charged with driving while impaired, driving while over a .08, or both, contact Ramsay Law Office as soon as possible. We’ll carefully explain the legal process to you and answer your questions.
Earlier this year Judge Abrams issued his case management order for the review of the Minnesota Intoxilyzer 5000. Among other deadlines, he set July 1 as the due date to provide the government with our experts’ report of our source code review.
Last week the source code coalition brought a motion to extend the timelines set by the court. We asked for a three month extension given the circumstances. The Court responded by extending these timelines by a little more than one month. I can’t help but compare this deadline with the current fiasco in the Gulf of Mexico.
While I’m not our president’s number one fan, I empathize with his position. He did not cause the BP oil spill in the Gulf of Mexico, but many look to him to stop the oil and limit the scope of this disaster. Given a choice, I’m sure that everyone would prefer that this oil leak was just offshore, instead of under 5,000 feet of water, and that those responsible for causing the problem would solve it themselves before anyone innocent is harmed.
Likewise, it was the state and CMI who have repeatedly dragged their feet and interfered with our software review. It was the state and CMI that mandated that we travel to Kentucky to review the software, instead of reviewing it from established computer forensics laboratories. Yet, Judge Abrams is expected to speed this whole review process along, meaning that we are expected to inspect, analyze and present a full report in less than two months! I feel like we are trying to plug a leaking oil well miles below the surface of the gulf - and what’s worse, it’s a leak that wewarned everyone about years ago!
“Need for Speed?”
This six week extension of the deadline for our experts to finish their report is already causing serious problems, and simply isn’t enough time to properly analyze a complex piece of ancient software. What makes this “need for speed” especially odd is the fact that the State has been dragging its feet for years on any issues regarding the source code!
I “led the charge” against the Intoxilyzer, and was one of the first attorneys in Minnesota to ask the state to produce the source code. This was back in 2006 - over four years ago - and sadly, I have a number of cases that have been consolidated dating all the way back to then.
The Minnesota Supreme Court issued Underdahl I in 2007, holding that Minnesota owned the source code and the state is required to provide it. As early as then, the state acknowledged it could sue CMI for access to the source code, but it did nothing until March, 2008. It was then, over two years after I made my first request, that the state filed a law suit against CMI. And even then, while the state outwardly claimed that it was suing to obtain the software, it was obvious the suit was primarily designed to keep it from us.
With barely a shot fired in the litigation, the state secretly (and hastily!) settled a second time with CMI in June, 2009. We objected to this settlement - we claimed that it rendered source code review too costly, too time consuming, and too inefficient. Nevertheless, Federal Judge Frank approved the settlement over our objection on July 16, 2009. Thus, over three years from the first request for the source code, the state finally crafted a half-cocked method of analyzing this problematic software.
Unfortunately (but not unexpectedly) this interesting settlement was simply the starting point for more and more delay . . .
Relying upon the terms of the settlement reached between the State and CMI, the breath test machine’s manufacturer delayed analysis of the software for months. It boasted about how it would provide a “hard copy” of the source code . . . and then it blacked out large portions of the material throughout the book.
Our experts had to cancel flights to Owensboro, Kentucky on several occasions. We were forced to bring motions in federal court to get greater access to the code, made agreements which CMI breached, and had to bring even more motions. All of this occurred months and months after the State had reached its secretive settlement with CMI, and years after the State was first asked to disclose the source code.
10,000 Leagues Under the Sea
Our experts finally - finally! - got access for the first time on May 11, 2010. Since then, they have worked diligently to get the job done, despite onerous conditions. They must perform review at CMI’s headquarters in Kentucky, under the constant supervision of CMI security. Hours are limited to Monday to Friday, 8:30-4:30. Each day, ½ hour is wasted for “check-in.” Additional time is wasted setting up and tearing down their equipment. Although it sounds like an exaggeration, our experts (who otherwise spend their time reviewing software on behalf of such clients as the U.S. Navy) assure us that these work conditions make no sense, and that their job has gone from a simple analysis to one that is more like capping an oil leak at the bottom of the ocean - a new, strange, and incredibly difficult experience.
This is the history behind our request for an additional three months to analyze the source code and issue a report. It is a history full of delay tactics, hidden agendas and double-speak. Yet here, now that we’ve finally pushed the State long enough and hard enough to actually provide us with some access to the source code, they are objecting to our request for more time, saying we’ve had plenty!
We are at a critical stage. After almost half a decade of motions, arguments and appeals, we are finally on the threshold of proving what we’ve always known to be the case: there are serious problems with the Intoxilyzer 5000 that is used in Minnesota. Drivers and their families have the right to ensure the black box accuser works as designed. Otherwise, we will blindly trust this Intoxilyzer and risk more erroneous convictions.
The State did everything it could to prevent us from reviewing this software. Then it was CMI’s turn to prevent analysis of the source code. Now, due to overly-restrictive scheduling orders (prompted by the State) our careful analysis is being rushed to a sudden conclusion. It almost seems like the State is being rewarded for dragging its feet for so long.
Yesterday, we blogged about the serious deficiencies of our nation’s forensic science system. We noted that although Minnesota’s crime lab has escaped wide spread scandal (notwithstanding the source code debacle), anecdotal evidence has emerged indicating the Bureau of Criminal Apprehension (BCA) is not immune from shoddy work.
Using independent analysis and independent testing, our firm discovered specific cases this year where the Minnesota BCA has reported inaccurate Driving While Impaired (DWI) test results. The BCA’s errors apply to all three DWI alcohol tests – blood, breath and urine. Today, we report on an erroneous BCA blood test result.
INACCURATE DWI BLOOD TESTS
Our client (“JM”) was arrested in February, 2010 for suspicion of driving while intoxicated in Ramsey County, Minnesota. The police asked JM to submit to a blood test and she complied. A paramedic withdrew the blood at the police station and mailed the blood sample to the Minnesota BCA for analysis. The BCA reported JM’s alcohol concentration to be .08, over the legal limit. The state revoked JM’s license to drive and charged her with Fourth Degree DWI.
We believe that good DWI defense attorneys never assume that government tests results are accurate. To verify JM’s BCA test results my firm had her blood retested by a reputable, independent lab. The results were astounding. The independent lab’s analysis revealed the BCA test results were inaccurate. The independent lab results were .078 – below the legal limit!
We have already had JM’s driver’s license reinstated and the incident removed from her driving record. With the benefit of the independent lab results of JM’s blood sample, I fully expect we will be successful in the criminal DWI case as well.
Blood testing is widely recognized as the “gold standard” for DWI alcohol testing. But a test is only as good as those who conduct the testing and only as reliable as the procedures they follow, including reporting the uncertainty in the test results (for an excellent article about metrology and reporting uncertainty, see The Truth About Forensic Science by Pennsylvania attorney, Justin McShane).
When investigating a blood test case, DWI lawyers should obtain not only the final lab reports, but also such information as all Quality Control tests used; all Quality Control tests performed on the test kit; any and all records relating to the test results; Chain of Custody records; the actual Gas Chromatograms; and Proficiency Records or results of proficiency tests for the BCA lab and the analyst who conducted the test.
Finally, attorneys should consider having the government’s DWI blood test results independently evaluated. In many cases, your clients may gain their freedom through independence.
Tomorrow in part three of our series on independent testing and analysis: DWI urine test results.
Our society has a blind faith in government forensic test results. The public’s confidence is particularly fervent in drunken driving cases. This confidence in government tests, however, is unfounded.
In 2009, the National Research Council reported serious deficiencies in the nation's forensic science system and called for major reforms and new research. It discovered that mandatory certification programs for forensic scientists were lacking, as were strong standards and protocols for analyzing and reporting on evidence. It found a scarcity of peer-reviewed studies establishing the scientific bases and reliability of many forensic methods.
Media reports provide support for the 2009 study. Major crime labs around the country have been exposed for unscrupulous behavior, resulting in erroneous, untrustworthy forensic testing. For example:
In Washington, a judge found “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” in the state’s crime lab and threw out hundreds of breath tests.
The mayor completely shut down the Detroit crime lab after voluminous errors were discovered.
Colorado Springs metro crime lab’s blood alcohol results were just plain wrong.
San Francisco’s crime lab is in the midst of a scandal which jeopardizes “thousands of cases.”
Minnesota’s crime lab, the Bureau of Criminal Apprehension (BCA), has thus far escaped wide spread scandal (notwithstanding the source code debacle). Still, it is not immune. Anecdotal evidence has emerged, signaling similar problems exist in Minnesota.
This year, our firm has discovered the Minnesota BCA has reported inaccurate test results in specific cases with all three of its DWI alcohol tests: blood, breath and urine. In the following three parts of our series, we will provide information about these cases demonstrating that individual drivers can help protect themselves through both administering independent tests and performing independent analysis of the state’s DWI alcohol samples.
Part 2: BCA Reports Inaccurate Blood Test Results
Part 3: BCA Reports Inaccurate Urine Test Results
Part 4: Intoxilyzer 5000’s Inaccurate Breath Test Results
One Hennepin County judge wrote in a source code order that it may be malpractice for a lawyer not to seek breath test software. That remains to be seen and depends primarily on the outcome of our experts' analysis. Practically speaking, however, the source code coalition has prepared matters to point where it requires little effort from attorneys to take advantage of this issue.
The upside is obvious -- drivers' DWI breath tests could be thrown out. There is little down side -- a minimal contribution from each lawyer and a delay necessitated by the review.
So the question is: is your lawyer a member of the Minnesota Intoxilyzer 5000 Source Code Coalition.
If not, get another lawyer.
I've listed of all members below as of today. In addition to this, all state public defender cases are included.
This is false. My law firm demanded full, unfettered access of the software on disc so that our experts can review it at their labs.
Because CMI and the state government secretly settled the federal lawsuit over our objections, we are limited to reviewing the source code at CMI corporate headquarters. CMI's onerous conditions have caused the cost of review to skyrocket and has slowed the process dramatically.
Interestingly, computer experts routinely conduct independent and adverse examinations of military and corporate source codes. The industry standard is to provide the software on disc to allow the experts to review the source code at their own labs. Why does CMI need protections greater than Coca-Cola, Microsoft and Apple Computer?
After months of negotiations, expert analysis of the breath test machine has come to a halt – before even getting started.
Last June the state of Minnesota and CMI announced they had secretly negotiated a resolution to the source code dispute. Attorneys who represent drivers charged with DWI objected, noting the agreement denied them reasonable access to the machine’s software that determines the guilt or innocence.
Since then, source code coalition leaders hired computer experts to analyze the Intoxilyzer 5000 source code and began preparation for software analysis in Kentucky. CMI, however, has continued to thwart coalition efforts, refusing to provide access meeting industry standards for software analysis.
Upon reaching an impasse with CMI, this week the source code coalition sent this letter to Judge Frank, the federal court judge who oversaw the state agreement with CMI, and to Judge Abrams, the Minnesota state court judge who is overseeing the consolidated state court cases. The coalition is asking the judges to remove the barriers erected by CMI, so the coalition can begin its review of the source code.
Recently, the Superintendent of the Minnesota Bureau of Criminal Apprehension sent a “fluff piece” to the Minneapolis Star Tribune titled, “Some Love for Forensic Scientists” touting why everyone should have “confidence in the quality of the BCA scientists’ work.”
The whole theme of this article can be summed up in one of the first sentences, where the Superintendent states, “without the painstaking work performed by forensic scientists . . . I'm confident justice would be served far less often in real life.”
This statement baffles me, and should baffle you too. Where was this confident sense of justice when the Intoxilyzer 5000 was failing? Are we honestly expected to have confidence in an agency that knewfor years that the Intoxilyzer was experiencing critical flaws, and boldly refused to fix those errors because of fears that fixing their mistakes would undermine the aura of perfection the BCA attempted to create around the Intoxilyzer? That’s neither justice nor good science.
And what about the BCA’s DWI urine testing regime? Minnesota is probably the only state to actually use first void testing regularly for DWI prosecutions. In fact, even other countries, those with far stricter DWI laws, won’t use urine testing for DWI prosecutions.
When a scientific agency is the only one doing something a particular way, it can only mean one of two things – either they are on the cutting edge of science, or they’re stubbornly clinging to science that has already been clearly and unequivocally refuted. I can tell you for a fact that the BCA’s treatment of urine testing isn’t cutting edge science.
What we have here is an agency that claims, in the newspapers, to be using scientific principles to ensure justice in the courtroom. What every Minnesotan needs to know, however, is that those scientific principles are typically ignored by the BCA for purely political reasons, and that always leads to injustice.
A truly independent scientific agency would not refuse to fix its Intoxilyzers for fear of looking foolish. An agency dedicated to sound science and fair convictions would not cling to an outdated and discredited method of urine testing to convict Minnesotan drivers of DWI.
Maybe a better title for that article would have been, “Science Only When it Suits Us.”
If you or your attorney have bought into the belief that the scientific evidence presented by the Minnesota BCA is unassailable, you’re wrong. We fight this evidence every day - and win. If you’re being charged with a crime based on supposedly scientific evidence, call the Ramsay Law Firm. We don’t believe the hype – we get results.
Minnesota’s DWI law (Chapter 169A) consumes 186 pages on Westlaw. By comparison, the entire First Degree Murder law easily fits on a single page.
Without an attorney who has the experience, knowledge and skills in the field of DWI law, you run the serious risk of losing what otherwise should be a winning case. This is especially true when it comes to the some of the arcane and obscure rules that apply in the civil “Implied Consent” case that trails along with almost every criminal DWI case.
In the context of a criminal case, any attorney worth his or her salt should know that the government must prove that an allegedly intoxicated driver was either driving, operating, or in “physical control” of a motor vehicle.
What most attorneys don’t know - probably because it isn’t even listed in a Minnesota statute - is that the State is alsorequired to prove that a person was driving, operating or in physical control of a vehicle in the civil Implied Consent case. This is an issue that can win cases, but first you have to recognize that the issue exists!
The civil implied consent law seems to limit the issues a driver may raise at the implied consent hearing. Note that none of the Implied Consent Statute does not permit a driver to challenge whether he or she was actually driving. Instead it permits a driver to challenge only whether the police officer had “probable cause.”
The scope of the hearing is limited to the issues in clauses (1) to (10):
(1) Did the peace officer have probable cause to believe the person was driving, operating, or in physical control of a motor vehicle or commercial motor vehicle in violation of section 169A.20 (driving while impaired)?
(2) Was the person lawfully placed under arrest for violation of section 169A.20?
(3) Was the person involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death?
(4) Did the person refuse to take a screening test provided for by section 169A.41 (preliminary screening test)?
(5) If the screening test was administered, did the test indicate an alcohol concentration of 0.08 or more?
(6) At the time of the request for the test, did the peace officer inform the person of the person's rights and the consequences of taking or refusing the test as required by section 169A.51, subdivision 2?
(7) Did the person refuse to permit the test?
(8) If a test was taken by a person driving, operating, or in physical control of a motor vehicle, did the test results indicate at the time of testing:
(i) an alcohol concentration of 0.08 or more; or
(ii) the presence of a controlled substance listed in schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols?
(9) If a test was taken by a person driving, operating, or in physical control of a commercial motor vehicle, did the test results indicate an alcohol concentration of 0.04 or more at the time of testing?
(10) Was the testing method used valid and reliable and were the test results accurately evaluated?
Despite the statutory limitations to the contrary, drivers can and should challenge whether the state can prove they were driving when appropriate. Many attorneys miss this since the statute does not seem to permit it.
Too many attorneys give a passing glance to the maze of DWI statutes, shrug their shoulders, and decide to plea their clients and outright waive the right to a hearing. At Ramsay Results, we’re always one step ahead, looking beyond the law to make sure that any issue that can be raised, will be raised. It’s how we practice law - and it’s how we get results.
One Hennepin County judge wrote in a source code order that it may be malpractice for a lawyer not to seek breath test software. That remains to be seen and depends primarily on the outcome of our experts' analysis. Practically speaking, however, the source code coalition has prepared matters to point where it requires little effort from attorneys to take advantage of this issue.
The upside is obvious -- drivers' DWI breath tests could be thrown out. There is little down side -- a minimal contribution from each lawyer and a delay necessitated by the review.
So the question is: is your lawyer a member of the Minnesota Intoxilyzer 5000 Source Code Coalition.
If not, get another lawyer.
I've listed of all members below as of today. In addition to this, all state public defender cases are included.
Here's the latest on the expert analysis of the software: While CMI, the Intoxilyzer 5000 manufacturer, has yet to provide us reasonable access, Marsh Halberg, one of the other lead attorneys, has made significant progress. Our experts are ready to go. We hope to have them in Owensburo Kentucky by the end of the January to begin the software review.
The Minnesota Supreme Court issued an Order consolidating Minnesota's Intoxilyzer 5000 Source Code cases.
The Supreme Court assigned ALL cases to Judge Abrams. This does not apply to public defender cases.
Judge Abrams is an excellent choice. He has done very well organizing and planning the First Judicial District's source code consolidation. His case management order follows the federal court system's multi-district litigation rules.
Criminal defense attorneys should contact lead counsel Chuck Ramsay, Marsh Halberg or Jeff Sheridan for more information.
If you have been arrested and submitted to a breath test by the Intoxilyzer 5000, make sure your attorney is a member of the source code coalition. Otherwise, your rights may not be vindicated.
As the battle of Minnesota’s Intoxilyzer 5000 continues with no real end in sight, many metro counties have consolidated their source code cases to conserve state resources, prevent inconsistent rulings and to manage the growing caseload.
The First Judicial District, with its seven counties, has consolidated its cases before one judge and has issued an Intoxilyzer 5000 Source Code case management order along the lines of the federal court’s multidistrict litigation rules. Judge Abrams, who teaches complex litigation at the University of Minnesota Law School, has by far done the best job organizing and scheduling the consolidated cases. Other counties have begun formal consolidation of Intoxilyzer 5000 source code cases, including Hennepin, Anoka and Chisago.
Judge Abrams:
When I began writing this blog last month, Ramsey and Washington Counties seemed to be of the only metro-area counties which had yet to consolidate.
Ramsey County’s chief judge had written to the Minnesota Supreme Court requesting consolidation on a state wide basis, but the request was denied for procedural reasons.
This week, Minnesota Lawyer reported that Ramsey County has a consolidation plan in place.
Ramsey County is following a kind of hybrid model of consolidation, Ramsey County District Court Chief Judge Kathleen Gearin said. Cases involving challenges to the source code will be assigned to one judge, but only for the purpose of resolving the source code issue. The cases will then be assigned to different judges for trial. Cases not involving source code issues must proceed, she added. ... Gearin said that there are discussions ongoing about multi-county proceedings, but Ramsey doesn’t want to wait while those talks run their course.
I have yet to see any orders reflecting this.
Judge Gearin:
The last Ramsey County order I received was before Thanksgiving from Ramsey CountyJudge Marrinan. The order addresses the timing and sequence of expert review of the breath test machine’s software.
The order states:
1. Defendant shall receive access to the source code from CMI pursuant to the instructions and parameters set forth in State v. CMI.
2. Consistent with the Permanent Injunction at Paragraph 3(b) of the above, the Court has executed a Protective Order in this matter, which is attached.
3. Within 90 days after execution of the NDA, Defendant's expert shall report his or her findings to Defendant's counsel, who shall forward a copy to the Court and to counsel for the State within three working days after receipt.
4. The State and CMI shall then have 90 days in which to have their experts review the report of defendant's expert, review the source code, and submit their reports.
5. The State and CMI, shall forward copies of their experts reports to the court and Defendant's counsel within three working days after receipt.
6. Defendant shall appear for a JT in this matter on 7/26/10 at 8:45 am in Maplewood Courtroom A.
While the Ramsey County order is designed to keep the source code battle moving, it is silent regarding issues that already have arisen. For example, CMI, the Intoxilyzer 5000 manufacturer, continues to thwart the Minnesota source code coalition’s experts’ review of the software. As a result, we have been unable to begin analyzing the code which will certainly delay our experts’ report. What if we are unable to complete the report in the time they required?
Minnesota DWI Defense Blog will continue to update its readers as information becomes available on the Intoxilyzer 5000 Source Code battle.
Hennepin County consolidated 102 DWI breath test cases. Today it held a hearing at which the attorneys, prosecutors and all 102 defendants were required to attend. The theory was that the prosecutors were going to offer deals to get the cases settled.
Someone forgot to tell the prosecutors.
Although some cases may eventually get resolved, it seemed few, if any cases, settled today. Instead, we learned:
·Prosecutors would not object to consolidation on a state wide basis, but have yet to file a motion to do so.
·Prosecutors have not looked into retaining an expert to analyze the source code, instead they will use the expert retained by the Attorney General on civil cases.
·Prosecutors do not want their expert to begin work until after the defense has concluded its work.
·Prosecutors believe it is best to set a “tracking date” to move things along.
·The Source Code Coalition requested consolidating HennepinCounty cases with the First Judicial District. This would save judicial resources as well as the resources of its municipalities.
The next date was set for June 1, 2010.
Judge Abrams has done an excellent job coordinating the 700+ cases in the First Judicial District and has issued a strict scheduling order, with a trial date of May 10, 2010. Trial is expected to take three weeks.
Is it a coincidence that HennepinCounty scheduled the next source code case immediately after the First Judicial District’s case?
In my opinion, the prosecutors from HennepinCounty don’t want consolidation because they want two bites at the apple. If the prosecutors like the results from the First District, will they seek to use the results in HennepinCounty. If they don’t like the results, then they have the right to their own hearing on the source code issue.
It would in the best interests of Minnesotan’s to move these cases along and stop wasting the tax payers’ money, particularly in these tough economic times. As I blogged previously, otherwise, CMI, the Intoxilyzer 5000 manufacturer, will be the sole winner here.
HennepinCounty is the sole county in the Second Judicial District, which has the largest population in the state of Minnesota. It has the following cities:
Hennepin County Judge Daly issued an email today regarding the approximately 90 criminal DWI Intoxilyzer Source Code. In the email addressed to the Source Code Coalition, judges of the Judges of the Fourth Judicial District and others, she wrote:
Good afternoon,
Tomorrow we will be conducting a hearing on the criminal source code cases. The hearing will be on the A Level of the GovernmentCenter, in the Jury Assembly Room, at 9:00 AM. I will be there along with Judges Wernick and Cahill. Judge Jerry Abrams of the First District will be attending the hearing.
Given that there are over 90 cases on that calendar we need to have some efficiencies. The hearing will be reported and so consideration will be given to the reporter as well. For those reasons we are asking that each “group” select a spokesperson. By “group” we mean the private defense group( MSCJ), the Meaney/Patrin group (if they wish to have a separate spokesperson), the PD (if they wish to speak separately from the MSCJ), the suburban prosecutors and the Minneapolis City Attorney.
We will be asking Judge Abrams to talk about what is happening in the First. We will then ask each group to state what they are requesting of the court going forward. Finally, ever hopeful, Judge Wernick and Cahill will be available to accept pleas should the parties wish to resolve their case. The defendants are required to appear at this hearing.
Please feel free to contact me with questions or concerns. See you all tomorrow.
Judge Daly
Given that CMI does not seem to be cooperating with the Source Code Coalition's efforts to examine the source code -- thus further delaying the review -- I hope prosecutors are in a mood to resolve these cases. To do so, I believe they should have the mindset that the Intoxilyzer 5000 test result will not be available to them in their case. Otherwise, the defendants will have no incentive to settle.
Today, Judge Abrams issued his Case Management Order (CMO) for Minnesota's First Judicial District's Intoxilyzer 5000 Source Code litigation. The order sets a final hearing on the source code issue for May 10-21, 2010.
WHEREAS, the Court has determined that this Case Management Order
("CMO") is appropriate and will be of assistance in the efficient management of this litigation; IT IS HEREBY ORDERED, that this CMO be and hereby is entered as follows:
1. Case Designation
Every filing shall contain, in its caption, the Master File Number 70-CV-09-19459.
In addition, for each separate case the individual originating County file number assigned to each case must also be included in the caption for any filing which pertains to an individual case. Filings in the Master Court File shall be made as set forth in the following paragraph. Attached hereto as Exhibit A is a listing of the original file numbers and other pertinent information for each case which is subject to this Order.
Allcases and all filings for the Master Case File herein shall be directed to the attention of Lori Brandon, Court Administration Scott County. Regardless of where the case was initially filed, all cases Subject to the Consolidation Orders issued in the First District by the Honorable Edward Lynch, as attached in Exhibit A, are to comply with the terms of this CMO. All filings for the individual matters shall be filed with the Court Administrator's Office in the originating county.
2. Applicability of Order
This Case Management Order ("CMO") applies to all pre trial, and trial proceedings concerning the "Source Code" issue in the Implied Consent Master Case and in all cases listed in Exhibit A. Upon resolution of the "Source Code" issue, each case shall be returned to its originating County for such further trials or hearings as may be required.
3. Filing and Service of Papers
a. Master Service List.
Except as otherwise provided for herein, all papers or pleadings filed with the Court or served upon a party shall be served as described in this CMO on counsel for all parties to this action in accordance with the Master Case List, attached hereto as Exhibit A. For the purposes of economy, it shall be sufficient to state in a certificate of service that the relevant document was served on counsel for all parties and on unrepresented parties listed on the Master Case List current as of that date. The Master Case List may be incorporated by reference with express reference to the revised date thereof, and need not be attached to the certificate of service. The document served must be addressed to the individual attorney(s) or unrepresented party(ies) on the Master Case List.
b. Method and Timing of Service.
Service of all pleadings, motions, deposition notices, requests for discovery and other papers required to be served upon counsel for the parties or unrepresented parties (collectively "papers") shall be affected upon the parties with copies to all persons on the Master Case List by electronic mail. Papers served by electronic mail shall be attached to emails as Adobe Acrobat (.pdf) files or Microsoft Word (.doc) files. To the extent a party is unable to effect service by electronic mail to counsel for any party or any party not represented by counsel, service may be affected by facsimile, overnight mail, or regular mail. Large exhibits, affidavits, declarations, or other supplemental documents may be served by overnight mail. With respect to any papers served as described in this paragraph 3b, three (3) days shall be added to any time computed under the Minnesota Rules of Civil Procedure or the Minnesota General Rules of Practice for any party to respond to any such papers.
All Orders of the court in connection with this case shall be posted on the First Judicial District Website at http://www.mncourts.gov/districU1/?page=3753 and shall also be simultaneously transmitted to Liaison Counsel for service upon parties in accordance with the procedures set forth herein.
c. Filings.
The original of every pleading and motion shall be filed with this Court along with proof of service on all counsel and unrepresented parties. The original of each filing shall be directed to the Master File; one copy shall be directed to the originating county for filing in the individual case file. A courtesy copy of every pleading, motion, or letter shall also be directed to Judge Abrams, C/O Daniel J. Sagstetter, Judicial Law Clerk. The parties are advised that for each case in which a fee may be required for filing, (e.g. motion fee, fax fee) THE FEE MUST BE PAID FOR EACH CASE INWHICH RELIEF IS BEING SOUGHT. The fee should be submitted to
Court Administration in the originating county for each individual file. No additional fee is required for the service copy directed to the Master File.The filing of discovery materials with this Court shall be governed by the Minnesota Rules of Civil Procedure, except that the original of all such papers which are not filed with this Court under such rules shall be kept in the offices of counsel responsible for generating such pleading, motion or discovery.
d. Correspondence.
All materials, such as correspondence, which are not due to be docketed, shall be sent directly to the chambers of Judge Abrams. Correspondence and other materials will only be accepted if they are in regards to general administrative matters. The parties shall not submit correspondence regarding substantive matters or any other substantive materials directly to the Judge assigned to the case unless requested by or authorized by Judge Abrams. The corresponding party shall contemporaneously forward a copy of all correspondence and other materials sent to Judge Abrams to all counsel and unrepresented parties by electronic mail or regular mail, as may be necessary.
e. Documents Filed with the District Court.
Notwithstanding the foregoing, any motion genuinely requiring emergency relief shall be delivered directly to the chambers of Judge Abrams. Any such document shall also be served electronically or faxed to all parties on the date of delivery. Proof of service shall be filed within (5) five business days thereafter.
4. Discovery
a. Avoiding Redundancy.
All parties should use their best efforts to avoid unduly duplicative submissions and propound joint discovery requests to the end of minimizing the need for any other party to perform repetitive file searches or interviews of employees and agents on the same topics.
b. Document Requests.
The parties shall not unreasonably refuse to grant extensions of time if reasonably required due to the voluminous number of documents being produced or other necessity associated with their document production.
i. Place of Production and Procedures.
Unless otherwise agreed by the parties, parties shall produce documents for inspection and copying, to the extent practicable, in the form and manner in which the documents have been maintained in the ordinary course of business or in which they previously have been maintained for production in litigation. To distinguish effectively among the documents designated for copying by the parties, each page of each document copied by any party shall bear a unique document identification number, with a unique prefix which identifies the party producing the document ("Bate Stamps" or "Bate Label"). Where documents or portions of documents are withheld, the parties shall, either through the numbering system or as otherwise provided in this Order, to the extent reasonably practicable, identify the number of pages withheld in a manner sufficient to indicate their location in the file being produced. Where part of a page is redacted, both the fact and location of the redaction, and the size or extent of the redaction shall be made clear on the face of the document.
Within a reasonable time before production, the producing party shall advise the inspecting party of the approximate volume of the documents and a general description of the types of files or other materials involved. Each party shall produce its documents at its option: (a) by production of originals as they are kept in the ordinary course of business; (b) by production of as legible as possible photocopies in the same format; or (c) by electronic means or other computerized storage. Notwithstanding these provisions, any party may request to inspect the original of any document, communication, or thing produced and the parties shall make arrangements for such inspection within ten (10) days of the request.
The location of the production shall be at the place where the documents are kept in the ordinary course of business, at the office of the producing attorney, or as otherwise agreed by the parties, provided, however, that all such document productions shall take place in the United States.
ii. Privilege Log.
If a party determines that a document responsive to a document request is subject to attorney/client privilege, attorney work product protection, or any other form of privileges or protection, the following method of handling the privileged or protected writing shall be followed.The producing party may withhold the privileged or protected document and must identify the withheld document on a privilege log which shall be provided to the requesting party and all other parties as soon as practicable, but no more than thirty (30) days following the date on which the producing party is due to commence physical production of the requested documents. If after completion of production pursuant to a particular demand for inspection the producing party discovers additional responsive documents and determines any of them to be subject to attorney/client privilege, attorney work product protection, or any other form of privilege or protection, the producing party may withhold any such privileged or protected document and must identify the withheld document on a privilege log which shall be provided to the requesting party as soon as practicable but in no case more than thirty (30) days after the documents are discovered. Likewise, to the extent any material within a document otherwise producible contains privileged or protected information, the document shall be produced subject to redaction of the subject privileged and protected material and shall be listed on the privilege log. All privilege logs shall identify each privileged document or work product by providing the Bates Label range, date, author(s), recipient(s), the subject matter of the document withheld or information redacted and the nature of the privilege or work product protection asserted. Nothing in this section shall preclude a party from challenging a claim of privilege.
c. Confidentiality Order.
All documents and other discovery materials and testimony produced or provided in this action may be subject to the terms and provisions of the Protective Order, in the form as attached as Exhibit B hereto, which has been entered in each case.
d. Inadvertent Production of Privileged Information.
If a party inadvertently produces information or documents that it considers privileged or protected material, in whole or in part, or learns of the production of its privileged or protected material by a third-party, the party may retrieve such information or documents or parts thereof, memoranda and other material as follows:
(1) Any assertion of inadvertent production shall be made as soon as practicable, but in any case within ten (10) days of the date the party discovers that it, its agents or attorneys, or a third-party has inadvertently produced the privileged document. The party asserting inadvertent production must provide written notice to all parties on the Master Case List via electronic mail or as otherwise provided herein that the party claims the document, in whole or in party, to be privileged or protected material; in addition, such notice must state the nature of the privilege or protection and the factual basis for asserting it. No assertion of inadvertent production will be made less than thirty (30) days before trial or fourteen (14) days after service of a trial exhibit list, whichever comes later.
(2) Upon receipt of such notice, all parties who have received copies of the document shall, within five (5) days thereafter, confer with the producing party and discuss how to resolve the issue. If no agreement is reached, the producing party may request reasonable relief from the Court, including an order that all copies of inadvertently produced documents shall be returned to the producing party, destroyed or otherwise be made available for procurement by the requesting party. Parties who received copies of inadvertently produced documents may oppose the granting of such relief on any permissible basis, including requesting an order that the inadvertently produced documents are not privileged and do not constitute protected attorney work product.
(3) In the event that only part of a document is claimed to be privileged or protected, the party asserting inadvertent production shall furnish to all parties redacted copies of such document, removing only the part(s) thereof claimed to be privileged or protected, together with such written notice.
e. Mutual Use of Discovery.
To help avoid redundancy, all discovery served by any party inure to the benefit of and are enforceable by any other party. The settlement, release or dismissal by any means of any party propounding such discovery will not in any way limit or extinguish any other party's obligation to comply with the discovery.
5. Motion Practice
Except as otherwise provided by the Court, pretrial motions in this litigation shall be governed by the Minnesota Rules of Civil Procedure and by the General Rules of
Practice for the District Courts, provided that these latter rules are modified procedurally as follows:
(1) Motion hearing dates shall be obtained directly from Jan Vohnoutka at Scott County Court Administration;
(2) Proposed orders for dispositive motions shall not be submitted unless specifically requested by the Court;
(3) The moving party shall provide a certification of an attempt to meet and confer to resolve their dispute, (such as is described in Rule 115.10 of the Rules of General Practice for the District Courts) which shall be in writing and shall be filed separately at least two (2) days prior to the hearing date.
Counsel shall attempt to coordinate a hearing date and the notice of motions for hearing on a date cleared with Jan Vohnoutka at Scott County Court Administration.
Nothing shall restrict any party's right to apply to the Court for an order shortening or extending time or page limitations on a motion upon a showing of good cause, but only after making good faith efforts to resolve the issue among counsel.
6. Coordination Among Parties
The Court expects cooperation among the parties to coordinate motion practice, discovery, trial, or otherwise to minimize the expense in this litigation. The parties shall, to the maximum extent practicable, avoid duplicative motions, briefs and discovery ("filings") consistent with each party's individual interests. Since many parties have a commonality of interest as to many issues in the actions, they may serve joint discovery and file joint submissions with the Court and/or adopt, join in or support any motion made or discovery propounded by another party simply by so noting in writing.
Each party has an affirmative duty to immediately notify the involved party upon receipt of any misdirected attorney/client or other privileged communication or work product document, outside the ordinary course of discovery. Upon written request, the receiving party shall either (a) return such communication or other document, along with any and all copies, to the involved party, or (b) provide correspondence or affidavit to the involved party attesting to the fact that such communication or documents and all copies thereof have been destroyed.
7. Depositions
a. Cooperation.
The parties will use reasonable efforts to schedule depositions by agreement. To that end, the parties will participate in bi-weekly discovery conferences by telephone for the purpose of making best efforts to select mutually convenient dates and places for the initial round of depositions, identifying witnesses and arranging other matters. Unless otherwise agreed, formal notice of scheduled depositions is required. Unless exigent circumstances exist, the parties will be advised of a deposition at least ten (10) calendar days before a deposition is scheduled to commence.
b. Non-Party Depositions.
Counsel shall attempt to resolve with any non-party deponent the identification for production and subsequent production of any documents being subpoenaed. Whenever possible, this process shall be completed no later than seven (7) days before the date on which the deposition has been scheduled. All counsel shall be given notice of any documents identified for production pursuant to subpoena and shall have the right to inspect and copy, at each inspecting party's expense, whatever documents are produced by a non-party in response to a subpoena.
Upon request, a party shall conduct a search of all records that may disclose the present address of any former employee and shall provide such information to the requesting party as soon as practicable. Nothing in this Order shall preclude any party, if it so chooses, from obtaining the attendance of any former employee or officer of another party for deposition by subpoena in the first instance.
c. Stipulations.
Unless otherwise noted on the record, the following stipulations shall apply to all depositions in these actions:
(1) Any objection by a single party shall be deemed an objection by each and every similarly situated party;
(2) Corrections to a deposition transcript shall be listed on an errata sheet, copies of which shall be served on all parties by counsel for the deponent or the deponent, within thirty (30) days following receipt of the deposition transcript;
(3) To the extent practicable, exhibits shall be attached to the original transcript. Where the form or volume of exhibits makes attachment to the transcript impractical, the custody of such exhibits shall be maintained at the office of the attorney taking the deposition or the court reporter and such exhibits shall, after reasonable notice, be subject to inspection and copying by any party during normal business hours or by appointment;
(4) The parties shall strive to select and retain court reporters that can produce transcripts in both manuscript and computer-readable format, other agreed format. The parties may stipulate to maintain an online repository for all depositions taken in these cases subject to limitations on accessibility as may be determined by the parties.
d. DepositionSchedule.
With respect to aged or infirm witnesses, counsel shall abide by the reasonable request of such witnesses with regard to timing and availability for deposition testimony. The parties will undertake all reasonable efforts to conduct depositions in an efficient, cost-effective and expedited manner.
e. Attendance and Interrogation.
All parties shall be entitled to be represented at every deposition and to inquire of a deponent through their counsel. A former employee or officer may be represented at his or her deposition by counsel for the former employer. In order to facilitate necessary arrangement for attending counsel, not less than two (2) days prior to the commencement date of a deposition, any counsel intending to attend the deposition shall use its best efforts to notify the noticing party and counsel for the deponent.
f. Time and Location of Depositions.
Depositions may be held Monday through Friday, and shall commence no earlier than 9:00 a.m., and conclude no later than 5:00 p.m. local time, unless otherwise agreed between counselor ordered by the Court. No deposition shall be scheduled for more than two (2) consecutive days absent agreement by the parties or order of the Court. A deposition may, however, proceed for a third consecutive day without agreement of the parties or order of the Court if there is at least eighteen (18) hours between the end of the second deposition day and the commencement of the third. To save expense and travel time, all sessions of the deposition of a single deponent shall, to the extent consistent with the witnesses' schedule and health and the deposition schedule, and unless otherwise agreed, proceed on successive weekdays and for the full deposition day until completion. Except as the parties may agree, no deposition shall be scheduled on the following dates: Court hearing dates, Martin Luther King, Jr.'s Birthday, President's Day, Good Friday, Passover (the first two days), Memorial Day, Independence Day (including the preceding Monday if it falls on a Tuesday or the following Friday if it falls on a Thursday), Labor Day, Rosh Hashanah (two days), Yom Kippur (two days), Columbus Day, Veterans Day, and Thanksgiving (Wednesday, Thursday and Friday). Depositions of witnesses residing outside the United States shall not be scheduled on national holidays in the witness' home country. In addition, no depositions shall be scheduled between December 21, 2009 and January 4, 2010 except upon agreement of the parties.
g. Out of State Depositions.
In order to facilitate the orderly taking of any such foreign deposition, the
Court hereby orders commissions to be granted to take out of state depositions of parties and non-party witnesses, at such times and in such places as are agreed upon by counsel, such commissions to be issued to persons duly authorized by the law of the foreign state to take such testimony. This Order appointing commissions to take foreign depositions shall be applicable to all out of state depositions taken in this action, without the need for any party to file any additional motion for appointment of a commission to take any out of state deposition. The parties will provide the Court with a template order, or otherwise with other necessary appropriate orders respecting the appointment of commissions.
h. Exhibits.
To the extent practicable, all parties intending to question a witness at a deposition with respect to documents shall provide a reasonable number of copies of such documents for the use of the other parties in attendance at the deposition. Exhibits should be identified by the name of the witness and numbered consecutively in each deposition.
i. Objections.
The only objections that shall be raised at any deposition are those involving a privilege or other protection against disclosure or some matter that may be remedied at the time, such as to the form of the question, that the question has previously been asked and clearly answered, or the responsiveness of the answers. Objections on any other grounds shall be avoided and are not waived but preserved until trial. All objections shall be concise and must not suggest answers to the deponent. So called "speaking objections" are not permitted. Except as to an objection on grounds of privilege, any objection made by one party reserves that objection for all other parties and duplicate objections shall not be made.
j. Directions to Deponent Notto Answer.
Directions to a deponent not to answer are improper except on the grounds of privilege, confidentiality, or other similar protection, or to enable the party or deponent to present a motion to the Court for termination of the deposition or protection such as under Minnesota Rule of Procedure 26.03. When privilege, confidentiality or other protection is claimed, the witness shall nevertheless answer questions relevant to the existence, extent or waiver of the privilege, confidentiality, or other protection.
k. Immediate Presentation of Deposition Disputes.
Consistent with discovery concepts and objectives set forth above, if disputes arise during a deposition which the attorneys cannot resolve by agreement and which, if not promptly decided, will critically disrupt the discovery program or court-imposed schedules, the parties may submit the matter orally by telephone to the undersigned if available.
8. Avoidance of Unnecessary Duplication
Cooperation and communication among parties as ordered herein shall not constitute the waiver of any applicable privilege or be construed as evidence of wrongful conduct. In the event that any party is in genuine doubt about the legal effect of the communication and cooperation ordered herein, such party may seek the Court's clarification of the party's responsibilities before proceeding.
9. No Waiver of Privilege Due to Joint Efforts
Communications in connection with this case between and among counsel for the parties and/or their clients, including the exchange of documents and information, shall be deemed subject to the attorney/client privilege, work product protection, and any other applicable privilege or protection to the same extent as if the communication had taken place within one law firm or between one law firm and one client represented by that firm. Protection afforded by this Order will survive the conclusion of this litigation and the dismissal of any party from this action. If a party withdraws from any cooperative litigation efforts with other parties, previous communications among the withdrawing party and such other parties and all work product shared by or with the withdrawing party with respect to this action, will remain subject to any attorney/client privilege, work product protection, or other privilege that attached at the time the communications were made or the work product was shared. Any such withdrawing party is under a duty not to reveal information obtained through such cooperative efforts.
10. Rules and Procedures
This CMO supersedes any provision of the Minnesota Rules of Civil procedure
and General Rules of Practice for the District Court that are in conflict with the provisions of this CMO.
11. CMO Binding on Subsequently Added Parties
Any new party to this consolidated action after the date the CMO is entered up to and including February 16, 2010 shall be served with a copy of this CMO by Liaison Counsel and any subsequent Case Management Orders. Any such new party will be bound by this CMO and all other Case Management Orders unless it files a motion for relief with the Court within ten (10) days after service of this CMO and other case management order upon it. Upon the addition of any party to this action, the party adding the new party shall serve a copy of this CMO on counsel for the new party within five (5) days of the date of receiving notice of the identity of the new party's counsel.
12. Liaison Counsel
In recognition of the large numbers of prosecutors, petitioners, and defendants in this action and to promote sufficient communication between and among the parties and the Court, the parties will appoint counsel to serve as Liaison Counsel, designated as follows:
Marsh Halberg
Minnesota Society for Criminal Justice - Source Code Coalition
Lee Orwig
Minnesota Society for Criminal Justice - Source Code Coalition
Jeff Sheridan
Minnesota Society for Criminal Justice - Source Code Coalition
Chuck Ramsay
Minnesota Society for Criminal Justice - Source Code Coalition
Derek Patrin
Meaney&Patrin, PA
Kristi Nielsen
Minnesota Attorney General's Office
David Koob
Minnesota Attorney General's Office
Subject to the right of any party to present individual or divergent positions, the liaison counsel is vested by this Court with the following responsibilities and duties:
(1) Communicate with opposing counsel, communicate with all other counsel in its respective liaison group and receive orders, notices and correspondence from this Court and the District Court Administrator in any matter pertaining to this action;
(2) Promptly forward to all counsel for its respective liaison group copies of all documents from the Court or the District Court Administrator, not otherwise provided to them electronically, report to all counsel in the represented group on all meetings and communications with this Court or other liaison counsel;
(3) Organize and schedule meetings of counsel for joint action;
(4) Coordinate common discovery;
(5) Initiate action by the Court to remedy disputes among the parties;
(6) Participate in conference calls with this Court to resolve disputes and scheduling matters;
(7) Maintain a current copy of the Master Case List, and serve and file any updated Master Case Lists; and
(8) Perform such other duties as may be expressly authorized by further order of this Court or agreed to by counsel.
Liaison counsel shall not be deemed to speak for, act for, or bind any particular litigant or group of litigants absent express authority provided by such litigant or group.All counsel of record shall have an opportunity to present to this Court their respective views and opinions as to matters before this Court. The liaison counsel shall not be liable for any actions arising from their respective roles as such and this Court shall act to remedy any inadvertence as appropriate.
13. Pro Hac Vice Admission of Attorneys
Any lawyer admitted or currently licensed to practice before a Court of general jurisdiction in any state in the United States and who is specifically associated with a currently licensed Minnesota lawyer may be deemed admitted pro hac vice to practice before the Court in this litigation only. Other than those attorneys admitted pro hac vice prior to the date of issuance of this Order, attorneys may be deemed admitted pro hac vice upon completion of the following:
A. An Affidavit Setting Forth:
(1) His or her full name and non-Minnesota business address;
(2) His or her date and place of each state licensure;
(3) A representation that the affiant's license to practice law is current and is not under revocation, suspension, restriction or limitation in any other state of admission or in the federal courts, and that the affiant is an attorney in good standing in all states of licensure;
(4) A representation that the affiant is, or will promptly become, familiar with all applicable Minnesota court rules, procedures and requirements of professional conduct, and will follow and abide by such rules, procedures and requirements.
B. A Notice of Pro Hac Vice Representation Selling Forth:
(1) The non-Minnesota lawyer's full name and non-Minnesota business address, telephone number, facsimile number, and e-mail address;
(2) The name, address, telephone number, facsimile number and e-mail address of the Minnesota lawyer or law firm with whom the attorney will associate for purposes of this litigation;
(3) The name of each party whom the attorney will represent.
Such affidavit and notice of pro hac vice representation shall be filed with the Court Administrator of the originating county of the case within the First judicial District.
Notice of pro hac vice representation shall be served upon all counsel on the Master Case List.
14. Status Conferences and Scheduling
a. Status Conferences.
General status conferences shall be held at 1:30 p.m. every other Friday as needed from December 11, 2009 (excluding December 25, 2009) until no longer needed. The principal purpose of the general status conference is to discuss and resolve administrative issues common to all parties. Issues that affect only specific parties and that have no significant implications for other parties will be calendared for a separate hearing date or, if the status conference agenda permits, for 2:30 p.m. on a status conference date.
Not later than the preceding Friday before the status conference, liaison counsel shall confer and shall determine whether or not a status conference for the following Friday will be necessary. If they agree that such conference is not necessary, they shall cancel the conference and promptly notify the Court and the remaining parties of the cancellation. Ifliaison counsel decides to proceed with the status conference, they shall prepare a common agenda and shall notify all parties and the Court thereof not later than the close of the business day on the Monday preceding the conference date.
b. Scheduling.
In recognition of the complexity of the issues before the Court, the Court will discuss the progress of the parties in discovery and other matters at the status conferences and upon application of the parties jointly or unilaterally may amend or modify the scheduling order from time to time.
The following dates and deadlines shall apply to all actions subject to this CMO:
February 16, 2010- Petitioner expert disclosure deadline; non-expert discovery ends; final date for adding new cases to docket of consolidated cases
April 2, 2010- Respondent expert disclosure deadline
April 6, 2010 - Expert discovery begins
April 19, 2010 - All non source code pre trial issues are to be resolved
May 3,2010 - Expert discovery concludes
May 10-21, 2010 - Final hearing on source code issue
Dated 12.1.09 by The Court: Jerome B. Abrams, Judge of District Court
Exhibit B
State of Minnesota, District Court
County of First Judicial District
Petitioner vs. Commissioner of Public Safety, Respondent
Court File No.
Protective Order
WHEREAS, the U.S. District Court for the District of Minnesota has entered a
Consent Judgment and Permanent Injunction regarding access to the source code used in the operation of the Intoxilyzer SOOOEN ("Source Code"), the breath-alcohol testing instrument used to enforce the driving while impaired ("DWI") and implied consent laws in Minnesota. This Consent Judgment and Permanent Injunction requires issuance of a Protective Order as a precondition to obtaining access to the Source Code; and
WHEREAS, this Court has ordered that the Source Code be made available for inspection and review or has found the Source Code to be relevant or material in the above-captioned case; and
IT IS HEREBY ORDERED:
1. As used in this Protective Order, the listed terms have the following meanings:
"Attorneys" means counsel of record in this matter;
"Confidential" documents and information are documents or information designated Confidential pursuant to Paragraph 2 herein; and
"Source Code" refers specifically to the Source Code for the Intoxilyzer 5000EN used in the State of Minnesota.
2. A Party may designate any document "Confidential," including interrogatory responses, other discovery responses, or transcripts, based on a good faith belief that the document constitutes or contains trade secrets or other confidential information. Source Code is hereby designated as Confidential, except for that portion of the Source Code assigned and delivered to the State pursuant to the Settlement Agreement between the State and CMI dated June 1, 2009.
3. All Confidential documents and information shall be used solely for the purpose of the above-captioned matter, or as otherwise permitted by the federal Consent
Judgment and Permanent Injunction.. No person receiving such documents or information shall, directly or indirectly, use, transfer, disclose, or communicate in any way Confidential documents or information to any person other than those specified in Paragraph 4 herein and the federal Consent Judgment and Permanent Injunction.
4. Access to any Confidential document or information shall be limited to:
(a) The Court and its staff;
(b) Attorneys of record and their law finns;
(c) Persons shown on the face of the document to have authored or received it;
(d) Court reporters retained to transcribe testimony;
(e) The Parties to this case;
(f) Outside vendors (limited to professional copy services);
(g) Outside independent persons who are retained by or otherwise assist a
Party or its Attorneys to provide technical or expert services and/or give testimony in this action, and who are not, and have not been, employed by (as an employee, agent, or consultant) or otherwise affiliated with, any manufacturer of breath alcohol testing instruments within the preceding twenty-four (24) months.
5. Any outside independent person (as defined in Paragraph 4(g) herein) who receives access to the Source Code or other Confidential information shall execute a Non-Disclosure Agreement in the form prescribed in Paragraph 3(c) of the federal Consent Judgment and Permanent Injunction before receiving access to the Source Code or Confidential Information. In addition, any Attorney or Party (as defined in Paragraphs 4(b) and (e) herein) who receives access to the Source Code shall also execute a NonDisclosure Agreement in the form prescribed in Paragraph 3(c) of the federal Consent Judgment and Permanent Injunction before receiving access to the Source Code. Receipt of access to the Source Code pursuant to this Protective Order shall not constitute or convey any right, title, license, or other interest in any portion of the Source Code.
6. Non-parties producing documents in the course of this action may also designate documents as "Confidential" subject to the same protections and constraints as the Parties to this action. A copy of this Protective Order shall be served along with any subpoena served in connection with this action. All documents and information produced by such non-parties shall be treated as "Confidential" for a period of 15 days from the date of their production, and during that period any Party may designate such documents as "Confidential" pursuant to the terms of this Protective Order.
7. Any testimony or written report that contains Confidential documents or information will receive the same protections afforded to Confidential documents themselves. Confidentiality designations for testimony shall be made on the record or, where appropriate, by written notice to the other Party. It shall be the responsibility of the Party who noticed the deposition, called the witness, or seeks to introduce the evidence, to designate such testimony or information as Confidential. The testimony of any witness (or any portion of such testimony) that contains Confidential information shall be given only in the presence of persons who are qualified to have access to such information pursuant to Paragraph 4 herein.
8. Any Party or non-party that inadvertently fails to identify documents or information as Confidential in accordance with this Protective Order shall, upon discovery of its oversight, promptly provide written notice of the error and substitute appropriately designated documents or information. Any Party receiving notice of improperly designated documents or information shall act immediately to retrieve such documents or information from persons not entitled to receive such documents or information and shall return the improperly designated documents or information to the producing Party.
9. Any document designated Confidential or containing Confidential information that is filed with this Court, including any expert report, shall be filed under seal. Any Confidential information shall be redacted from such document or report before it is made publicly available.
10. No action taken in accordance with this Protective Order shall be construed to be a waiver of any claim or defense in the action or of any position as to discoverability or admissibility of any evidence in the case.
11. The obligations imposed by this Protective Order shall survive the termination of the above-captioned matter.
12. Any violation or breach of the terms and conditions set forth in this
Protective Order shall be grounds for any appropriate sanctions available under the law.
Is your DWI lawyer a member of the Minnesota Source Code Coalition? If you took an Intoxilyzer 5000 breath test and lost your license and/or you are being charged with a DWI, your attorney may not be doing all he or she can to win. Urge them to become a member immediately to defend you against the state's unscientific breath test machine.
In each of the implied consent cases, the petitioner has challenged the reliability of his or her Intoxilyzer 5000EN test result based on their belief that reviewing the source code for the Intoxilyzer 5000EN will reveal a material defect affecting the instrument’s ability to produce accurate alcohol concentration results.I have addressed the flaws of the Intoxilyzer in past blog entries.
The Chisago County Court Administrator’s office notified my office today that it was consolidating the county’s source code cases into one hearing. The hearing is scheduled to be heard on May 5, 2010.
Coincidentally, Anoka County has scheduled its consolidated source code hearing for the same date. Chisago County seemed unaware of this. I do not know whether Chisago will reschedule the hearing. Since Chisago County is in the Tenth Judicial District with Anoka County (along with the counties of Isanti, Kanabec, Pine, Sherburne, Washington, and Wright), perhaps the district will consolidate the entire district’s hearings. In my opinion, this would save judicial resources and be more efficient for the courts and litigants.
As was previously reported in a previous blog on 10.19.09 - Updated - Source Code Review Process - See who is involved - many private attorneys have each donated $1,000 to MSCJ’s source code review process. 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.
If your attorney is not on the list, he or she is not keeping up with even the minimal requirements of a dwi lawyer.
At the heart of the matter is the reliability of the Intoxilyzer 5000 and whether or not this machine accurately measures a person’s alcohol concentration under Minnesota's DWI laws. This is the machine used state wide. I have addressed the flaws of the Intoxilyzer 5000 in past blog entries.
At yesterday’s mass hearing, coalition attorneys told Judge Abrams that they had hired Computer Forensics Services to review the source code as allowed under the federal court settlement. This would take approximately 2-3 months and will be done at CMI headquarters in Kentucky.
Judge Abrams decided he would schedule one mass hearing for next spring, to determine whether the breath test machine is reliable after the findings of the source code review. The hearing which includes 286 civil cases and 238 criminal cases (and growing) throughout the First Judicial District is expected to last anywhere from one to three weeks.
Other District Courts may join the First Judicial Districts in this hearing or conduct mass hearings of their own on the reliability and accuracy of the Intoxilyzer 5000.
Chuck Ramsay, Jeff Sheridan and Marsh Halberg have been named as lead counsel for the Minnesota Source Code Coalition. The three Minnesota attorneys have established themselves as leaders on the Minnesota DWI breath test issue. Ramsay obtained the source code in a federal lawsuit when he thwarted a Minnesota/CMI settlement which would have buried the software. Instead, he forced the state and CMI into providing unfettered access to the source code at the manufacturer's headquarters. Ramsay uncovered the secret "smoking gun" and "inferno" internal emails. Sheridan prevailed at the Minnesota Supreme Court in the Underdahl case opening the door to the source code issue. Halberg has been instrumental in organizing the defense bar and leading the coalition and also submitted valuable memoranda on behalf of the MSCJ in the federal case.
Lead counsel is appointed when multiple parties share sufficient common interests so that one attorney may represent them as a group, without conflict, on substantive matters. Typically, when a number of attorneys are appointed as co-lead counsel, each is charged with a particular specialty. Commonly, lead counsel will be appointed to head the trial team, for expert discovery, for factual discovery and for briefing.
Earlier this month, fellow criminal defense lawyer, Ms. Christine Funk interviewed Mr. Charles Ramsay for asegmentof her online show, The Crime, Science and Information Show, that provides answers to various questions regarding workings of thelaw, the judicial system and the principles of forensic science.
Mr. Ramsay met with Christine Funk in order to discuss intoxication laws – including what those laws are, evidence and scientific issues concerning those laws and legal challenges that may occur now that evidence and scientific angles are being challenged.
During the interview, Mr. Ramsay explains the difference between driving while intoxicated (DWI) and driving under the influence (DUI), various tolerance levels for individuals and the government's means for determining an individual's alcohol concentration (urine testing, blood testing, breath testing). He also provides more information on breath test machines and the source code issues breathalyzers face.
Like Charles, Christine believes in knowing the law, the facts surrounding each case and the science behind each case.
Ms. Christine Funk has been with the Public Defenders Office for the State of Minnesota, serving as a member of the Trial Team Office. Christine has made great strides in challenging DNA evidence in cases throughout her career and has strived to make scientific evidence understandable to other lawyers, along with average, ordinary citizens. She hosts the online show, The Crime, Science and Information Show on The Women’s Information Network website.
On October 21, 2009 an order issued by the Honorable Jerome Abrams was filed by the First Judicial District which sets an agenda for a scheduling conference on November 4, 2009 to discuss factors in the on-going Source Code dispute. Judge Abrams has been assigned to this matter by Order of the Chief and Judge of the First Judicial District pursuant to minn.stat. §484.69, subd.3. Minnesota’s First Judicial District is comprised of the following counties: Carver, Dakota, Goodhue, LeSueur, McLeod, Scott and Sibley.
This hearing will address how the First Judicial District Court of Minnesota will proceed in the Source Code Evidentiary Hearings in Implied Consent and Criminal matters. Key topics in source code evidence such as source code disclosures, timing of disclosures, identifying all experts for the defendant, petitioner and State, and expert opinion disclosures/reports along with additional fact disclosure will be determined. To read the complete agenda please see the Order Setting Agenda for Hearing dated 10.21.09.
This mass Source Code Scheduling Conference will more than likely take an entire day and will consolidate 286 civil cases and 238 criminal cases. While the idea of doing a ‘mass’ hearing seems logical at first – saving judicial resources, time and expenses – one has to ask – what expense does each individual face?
Anoka County became the latest county in the state of Minnesota to consolidate its breath test cases involving the battle over its source code.The hearing for civil cases is set for May 5, 2010.Criminal cases will be heard May 26, 2010.
AnokaCounty is in the Tenth Judicial District, which is comprised of Anoka, Chisago, Isanti, Kanabec, Pine, Sherburne, Washington, and WrightCounties.
The other counties that have consolidated cases are HennepinCounty, and the entire First Judicial District (comprised of Carver, Dakota, Goodhue, LeSueur, McLeod, Scott and Sibley counties).
Chief Judge of Ramsey County, Judge Gearing, sent a letter last month to Chief Justice Eric Magnuson requesting that the state consolidate all the Intoxilyzer cases within the state.Chief Justice Magnuson’s decision, if any, has been made public as of this writing.
As was previously reported in a previous blog (Source Code Review Process - See who's getting involved!) - As of October 16th, 98 Private Attorneys have each donated $1,000 to MSCJ’s source code review process.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 an updated 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.
New Jersey Attorney, Evan Levow, reported that today a judge threw out the 0.14 breath test result in New Jersey v. Chun.Chun was the name of the lead defendant in New Jersey’s state-wide battle over its new breath test machine.Mr. Levow has represented Ms. Chun throughout the process.
Although the first four and 1/2 years of pre-trial litigation focused on whether the Draeger Alcotest was scientifically reliable – which included analysis of the machine’s source code – the judged suppressed the test based on the officer's failure to follow proper procedures for changing the mouth piece. (Both the manufacturer and the head of the Alcotest program testified in the state wide hearings that the mouthpiece must be changed after each breath sample, which wasn't done.)
Tomorrow they try the impaired charge. We wish Mr. Levow and Ms. Chun the best of luck.Certainly no one can question the lengths to which Mr. Levow will go to give his clients the best possible representation.See Mr. Levow’s website for more information about the case.See my blog and website for more information about the fight over Minnesota’s breath test machine and source code battle.
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.
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.
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:
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.
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.
In order to make a proper analysis concerning the Source Code for the Intoxilyzer 5000, defense attorneys must send an independent analyst to Owensboro, Ky. On July 18th, 2009 the Minnesota Society for Criminal Justice (MSCJ) unanimously voted to coordinate efforts to retain experts to travel to CMI headquarters. Specific details concerning the initial analysis through eventual issuance of a final report are still being determined. In the meantime, MSCJ is sending letters to the chief judge for each district court in Minnesota, asking for their cooperation in scheduling criminal and implied consent cases due to the time sensitive nature of the source code analysis. The analysis is expected to reasonably take approximately 180 days.
If you would like to view a sample letter that is being sent to each district court in Minnesota, please click: Source Code Letter
As previously reported in this blog, many have been patiently awaiting Judge Frank’s decision on the proposed Source Code Settlement between the State of Minnesota vs. CMI, of Kentucky, Inc. On July 16th, 2009, Judge Frank approved this settlement much to the dismay of myself and the others who have been diligently fighting in hopes to obtain the source code for the Intoxilyer 5000EN, the breath test machine currently used in the state of Minnesota by law enforcement to test suspected drunken drivers.
This agreement requires CMI, Inc. to provide a hard copy to the State of Minnesota. However paper documentation only is insufficient. If proper analysis is to take place it would require defense attorneys to send an analyst to CMI headquarters in Owensboro, Ky to try and determine whether the Source Code contains errors and provides faulty readings. At this time it is unclear how much that would cost – but estimates show it could take up to 180 days and cost upwards of $50,000.00 - $100,000.00.
Defense Attorney Charles Ramsay and others have been diligently fighting in hopes to obtain the source code for the Intoxilyer 5000EN, the breath test machine currently used in the state of Minnesota by law enforcement to test suspected drunken drivers. On Friday June 19th, 2009 Charles Ramsay, on behalf of Plantiffs-Intervenor and other defense attorneys, argued their position at a Motion Hearing regarding the Source Code Litigation before the Honorable Judge Frank.
As reported in the Star Tribune, Judge Frank will issue a decision in regards to a proposed federal settlement for Minnesota drivers to gain access ...This decision may end three years of litigation over the source code that runs the Intoxilyzer 5000EN.
On Friday, May 29th, 2009 the attorney's for CMI and the attorney's from the Attorney General's office met privately, and secretly for about six hours and determined a mutual settlement agreement on the Source Code issue. But the odd thing was that no one from the Plantiff-Intervenors were present or made aware of this meeting until THIS morning. Even though it was indicated in the minutes, from this private meeting, that the plaintiff-intervenors were in attendance. That is a bona fide lie.
Mr. Ramsay was quoted by the Pioneer Press in the article; Minnesota U.S. District Court / Breath test maker offers new deal, stating: "It's not a paper version of the source code. It's actually a decompiled version of the machine language, which strips the source code of key aspects." The article further reads,"Ramsay also objected to the hearing date, calling it too early. He said that in federal court in Minnesota, parties are given 45 days to review motions to settle a case. The June 11 hearing "violates the local federal rules," he said. "
So why is the Minnesota Attorney General so Desperate? Perhaps this is the reason:
In the second appellate decision in two weeks, the Minnesota Court of Appeals overturned a lower court ruling denying the source code to a Minnesota driver in Bowen v. Commissioner of Public Safety. Specifically, it held:
“[T]he district court abused it discretion when it concluded that appellant’s discovery motion was not reasonably calculate to lead to the discovery of admissible evidence....”
The court remanded the case to the district court for further proceedings.
After the recent State v. Brunner decision, we wondered how much discretion the appellate courts would give judges in deciding the DWI Intoxilyzer source code issue. Now know: almost none.
Bottom line: If the driver includes any document that indicates how the source code is relevant to the Intoxilyzer breath test machine, the judge must order the state to produce it.
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.
I have previously posted an index of the documents my firm submits in each source code case. Now that the Minnesota Supreme Court has ruled in State v. Brunner, upholding a trial court's ruling to suppress an Intoxilyzer 5000 breath test result, other attorneys are contacting me for the documents used in that case.
The Supreme Court held the standard for discovery of the source code is that a driver must show the software is merely related to the defendant's guilty or innocence. Brunner submitted only two substantive documents, which met that standard.
Here are links to the documents Attorney Derek Patrin used in State v. Brunner.
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.
Today the Minnesota Supreme Court ruled in favor of a driver who sought the breath test machine’s software. The driver presented the trial court with documents explaining what the source code is, the issues surrounding the software, an example of a breath-test machine analysis and potential defects in the software.
In the case, State v. Brunner, the trial court had ordered the state to produce the source code in 30 days or the breath test result would be suppressed. The Minnesota Court of Appeals reversed the trial court. Today, the Minnesota Supreme Court reversed Minnesota Court of Appeals and upheld the trial court’s original decision ordering the source code.
The Court also upheld the lower court’s ruling that the state has possession or control of the source code. In fact, it cited to its previous ruling, Underdahl I.
Another case that was consolidated with Brunner, State v. Underdahl, suffered a different fate. The Court noted that Underdahl made zero showing of relevance. Justice Myers, writing for the majority wrote,
"We hold that, even under a lenient showing requirement, Underdahl failed to make a showing that the source code may relate to his guilt or innocence."
RAMSAY’S OPINION: What Now?
I believe this marks the end of the Intoxilyzer 5000 in Minnesota. Brunner’s attorney submitted only nine documents to meet his burden to have the source code, two of which seemed to be sufficient: A document from Chun , a New Jersey breath-test case, and a paper written about voting machine source code. Now any competent attorney can make the requisite minimal showing.
I’ve spoken to a few prosecutors today. They are telling their police officers to stop using breath testing until further notice. Instead, the officers will use blood or urine testing.
This will continue until either
a) the state buys new breath testing equipment from another manufacturer or
b) CMI, the Intoxilyzer manufacturer turns over the software.
Last month marked the first anniversary of Minnesota’s lawsuit against CMI, the manufacturer of the Intoxilyzer 5000. After the Minnesota Attorney General filed suit – I filed a motion to intervene to ensure the AG’s intentions were in our best interests. I said,
“We fear the attorney general will get the software but will only be able to turn it over under conditions that preclude a meaningful opportunity to examine it.”
Two months later the AG and CMI announced they had settled the matter. The Minnesota Commissioner of Public Safety announced it had solved the problem. He proclaimed to have secured the means for drivers to inspect the source code while, at the same time, freeing the courts, prosecutors and law enforcement from having to deal with the issue.
The agreement was labeled “Consent Decree and Permanent Injunction.” While it may have ridded the government of the burden of dealing with the vindicating citizens’ rights, it did not solve drivers’ need for access to the source code. It thwarted it. The agreement would have limited citizens’ access to the software to such an extent that it would be impossible for a defense expert to inspect the software.
Fortunately, Judge Frank permitted us to intervene in the suit. He noted that in this rare case, the state attorney general is not adequately representing the interests of Minnesota citizens. He permitted the parties (including the newly added Plaintiffs-Intervener) and other concerned groups to submit written arguments and make oral arguments.
In particular, the Court cannot clued that the parties’ proposed mechanism for permitting access to the Source Code serves the public interest and makes the Source code “readily and reasonably available.”
In another order the judge described the AG’s position as a “moving target.”
THE AG’S PLAYS ITS LATEST CARD: WE DON’T OWN THE SOURCE CODE
The state averred in its Complaint that it is the sole owners of the source code for Minnesota’s Intoxilyzer breath test machines. For example, in its request for its relief, it asked the federal court for an order, “Declaring that pursuant to the U.S. Copyright Act, the State of Minnesota is the sole owner of any and all copyrights to the source code for the Minnesota model of the Intoxilyzer 5000.Complaint, Prayer for Relief, I (emphasis added).
In an apparent “about face”, the state this month told CMI it was not claiming to be the sole owner of the software.
As a result of our conversation yesterday, the State wishes to clarify its position regarding ownership of the source code. The State does not allege that it owns the entire source code for the Intoxilyzer 5000EN instruments sold to the State. In this lawsuit, the State is seeking, inter alia, a declaration that the State owns the portion of the source code created for the State.
In March, 2008 the Minnesota Commissioner of Public Safety sued CMI, the manufacturer of the state’s breath test machines. At the time the Commissioner claimed it was the owner of the source code (software) that operates the Intoxilyzer 5000 breath test machine. Specifically, the Minnesota Attorney General claimed in the suit,
In its contract with the State, Defendant CMI conveyed to the State ownership of any and all copyrightable material and documents created in the course of its performance of the contact. These materials include the source code to the Minnesota model of the Intoxilyzer 5000.
In its request for its relief, it asked the federal court for an order, “Declaring that pursuant to the U.S. Copyright Act, the State of Minnesota is the sole owner of any and all copyrights to the source code for the Minnesota model of the Intoxilyzer 5000.Prayer for Relief, I.
A SHOCKING CHANGE
Yesterday, the Office of the Attorney General retreated from its claim that the state is the sole owner of the source code. In a letter sent by email to CMI lawyers, the AG claimed to own only a limited portion of the software.
As a result of our conversation yesterday, the State wishes to clarify its position regarding ownership of the source code. The State does not allege that it owns the entire source code for the Intoxilyzer 5000EN instruments sold to the State. In this lawsuit, the State is seeking, inter alia, a declaration that the State owns the portion of the source code created for the State.
It appears prosecutors continue to be concerned about the so-called "source code" issue in Minnesota, despite recent victories in the appellate courts. Today, prosecutors from Hennepin and Washington counties notified my office they would dismiss the charges against two of my clients. Both were Intoxilyzer 5000 breath test cases involving the source code issue.
The state has not dismissed the impaired driving charge. In order to prevail, the government must prove beyond a reasonable doubt that alcohol impaired my clients usual skill, intellect and coordination -- a difficult task without an alcohol test!
Another appellate court – this time in Arizona – has overturned a trial court’s Intoxilyzer software ruling. The appellate panel said the judge should not have issued the order because the prosecutors did not have possession of the software and had no way of getting it.
In Minnesota, the Intoxilyzer 5000 – the breath test machine used in DWI cases – test result is admitted at trial without any expert testimony. All that is required is a police officer to testify that he was trained to operate the machine and the machine did not self-report any errors. The burden then shifts to the driver to show why the result is incorrect. Since Minnesota does not save the breath sample (with the use of a simple, $1 device) the driver faces an impossible burden.
Email communication between the Intoxilyzer 5000 manufacturer, CMI, Inc., and the Minnesota Bureau of Criminal Apprehension, reveals critical flaws in the device. As I’ve blogged previously and has been reported by local FOX and CBS news, innocent people – those with alcohol concentrations below the legal limit – are going to jail.
Innocent people going to jail based on a secret black box. The state and CMI prevent the experts from inspecting the software – the only way in most cases to refute the test results. This denies citizens of their Constitutional Right of Confrontation, of Due Process, to a Trial by Jury, Presumption of Innocence and to Present a Complete Defense.
The Minnesota Court of Appeals rejected another driver's source code request. In Chastek v. Commissioner of Public Safety and State of Minnesota, the court found the driver did not convince the court the source code was not reasonably calculated to lead to admissible evidence in the implied consent case, and that it did not relate to the driver's guilt or innocence in the criminal case. The court concludes that the driver failed to show "any relevancy" of the source code.
The Intoxilyzer 5000 source code (software) runs every aspect of the test, including ensuring an acceptable breath sample, employing critical scientific safeguards, and evaluating the alcohol concentration. The software is not just relevant to the breath test result, it IS the process used to determine the alcohol concentration.
Below is the table of contents I include in my source code motions to demonstrate the need for the source code. Although I've never counted, the entire submission is approximately 2000 total pages.
Motion to Compel Discovery of Source Code
Index of Exhibits And Supporting Documentation
SCHOLARLY ARTICLES
1. Thomas E. Workman, Jr. Litigation in the United States: What Challenges Have Been Asserted, and Where is this Litigation Heading Analysis of ‘Source Code’? (August 30, 2007).
Article presenting a detailed overview of issues surrounding "source code" and why independent analysis of the source code is an essential element to providing a complete defense to a DWI charge.
2. C. Dennis Simpson, et. al. Effects of Mouth Alcohol on Breath Alcohol Results, Int’l Journal of Drug Testing, Vol. 3.
Scholarly article analyzing the source-code operated "slope detector" of the BAC DataMaster (a breath test device similar to the Intoxilyzer 5000), concluding that the programming of the source code for the "slope detector" fails to perform as allegedly designed in 48% of breath tests.
3. Michael P. Hlastala, et. al. The Slope Detector Does Not Always Detect the Presence of Mouth Alcohol.
Scholarly article analyzing the source-code operated "slope detector" in both the BAC DataMaster and Intoxilyzer 5000 breath testing devices, concluding that this feature is not programmed to act as designed.
4. C. Dennis Simpson, et. al., Varying Length of Expirational Blow and End Result Breath Alcohol, Int’l Journal of Drug Testing, Vol. 3.
Scholarly article analyzing the effects of breath volume on breath alcohol content for the BAC DataMaster (a breath test device similar to the Intoxilyzer 5000), concluding that the more breath a test subject provides, the higher the reported result.
CASE LAW
5. Comm’r of Pub. Safety v. Underdahl, 735 N.W.2d 706 (Minn. 2007).
Holding, inter alia, that the source code to the Intoxilyzer 5000 is discoverable evidence.
6. State v. Olcott, 2008 WL 1747675 (April 15, 2008)
Holding that, in order to obtain discovery of the source code to the Intoxilyzer 5000, defendant’s must make a minimal showing that this source code relates to defendant’s guilt or innocence before a motion compelling additional discovery under Rule 9 will be granted.
7. Order of the Supreme Court in State v. Underdahl/Brunner (Underdahl II), A07-2293 & A07-2428, dated August 5, 2008.
Order granting review of the Court of Appeals decision in State v. Underdahl, wherein the Court of Appeals overturned the trial court’s order compelling the State to disclose the source code to the Intoxilyzer 5000.
8. Petition for further review in State v. Brunner, A07-2428.
Petition for further review that was granted by the Supreme Court (Underdahl II), providing factual and legal basis for compelling disclosure of the source code
9. House v. Commonwealth of Kentucky, 2008 WL 162212 (Ky. App. 2008).
Reversing a lower court’s order quashing a subpoena duces tecum to CMI seeking production of their source code, and stating, "Because a flaw in the computer source code of the Intoxilyzer 5000 would be consequential to the accuracy of the reading intended to be relied upon by the Commonwealth, such evidence is relevant and admissible."
10. Order of the Honorable Judge Deborah Bernini in State v. Livingston, et. al, CR-20071499, dated September 10, 2008.
Order from an Arizona judge who heard testimony from both Toby Hall, President of CMI and Thomas Workman, software expert, detailing CMI’s lack of legally protectable interests in their source code.
EXPERT AFFIDAVITS AND SUPPORTING DOCUMENTATION
11. Affidavit and supporting documentation of electrical and computer engineer Harley R. Myler, dated September 9, 2006.
Concluding, inter alia, that independent analysis of the source code to the Intoxilyzer 5000 is essential to determining the reliability of any test result.
12. Affidavit and supporting documentation of forensic scientist Thomas R. Burr, dated October 11, 2007.
Concluding, inter alia, that access to the source code to the Intoxilyzer 5000 is essential to determine if the device functions according to its design.
13. Affidavit and supporting documentation of forensic scientist Thomas R. Burr, dated December 17, 2007.
Concluding, inter alia, that access to the source code to the Intoxilyzer 5000 is essential to determine why Intoxilyzer 5000 Serial No. 68-010185 is transmitting different test results to the BCA than it is printing out locally at the time of the actual test.
14. Declaration of Thomas E. Workman, Jr., dated October 31, 2008.
ADDITIONAL EVIDENCE THAT SOURCE CODE IS RELEVANT
15. Breath Test Operator Training Course, Intoxilyzer 5000 (2nd Ed., Version 3.1, November 10, 2005), page 11.
Explains that the CPU for the Intoxilyzer 5000 utilizes a "Z-80 microprocessor that utilizes an EPROM for program memory and handles all operator commands and interface devices."
16. Intoxilyzer 5000EN Sales Brochure.
Stating that, "Every aspect of operation, from displaying and printing of information to the basic electrical and mechanical functions, is micro-computer [source code] controlled."
17. Intoxilyzer 5000EN Court Challenge "Frequently Asked Questions," January 2008 (originally posted at http://www.dps.state.mn.us.
Stating that, "The source code is important because it determines what programming is loaded into the Intoxilyzer – basically, it tells the Intoxilyzer how to interpret the physical data it receives when someone blows into the device."
18. Report on Behalf of Defendants, submitted to Judge Michael P. King, analyzing the source code to the Alcotest 7110 Mk III C (Docket No. 58,879).
An analysis of the source code to a similar breath testing machine, uncovering 24 major defects in the source code, and highlighting nine defects that would have the greatest impact on the validity of test results.
19. Memo from David Ferguson and Robert Marshall, Tennessee Bureau of Investigation Special Agent Forensic Scientists, to Samera Zavaro, Tennessee Bureau of Investigation Special Agent Forensic Scientist Supervisor, Dated September 12, 2003.
Concluding that access and evaluation of the controller software (source code) to a breath testing machine is a "critical part" of any request for proposal evaluation.
20. Cross Examination of Karen Kierzek in the case of State v. Netland, Court File No. 06001264 (October 3, 2006)
Testimony by BCA Expert Karen Kierzek that the reliability of the source-code-operated "slope detector" in the Intoxilyzer 5000 is questionable.
21. Affidavit of President of CMI Toby Hall, dated February 7, 2008.
Admitting, inter alia, that "the Source Code for the Intoxilyzer 5000 has been coded to perform all of the functions for conducting breath tests."
22. Proposed Protective Order from Michael S. Hargis, on behalf of CMI, dated September 18, 2007.
Stating that, "disclosure of such information including the Source Code would cause irreparable harm to CMI, Inc." and tacitly admitting to the relevance and importance of the Source Code to the operation of the Intoxilyzer 5000
23. Minn. Stat §206.805, subd. 2 (2006) State Voting Systems Contracts
Statute requiring disclosure of any source code related to contracts for voting machines in the State of Minnesota, to be reviewed by, inter alia, an independent third-party evaluator and the secretary of state.
24. Virginia Department of Planning and Budget, Decision Package Narrative Justification (2007).
Funding Request from the Commonwealth of Virginia’s Department of Forensic Science for the funding necessary to replace its fleet of Intoxilyzer 5000 breath test machines because the Intoxilyzer 5000 is, "dated, unstable and unreliable."
25. Direct Examination of Thomas Workman in the case of State v. Livingston, CR-20071499, June 20, 2008.
Careful analysis of why the source code is essential to the operation of the Intoxilyzer and how source code review is necessary to ensure the reliability of that machine.
26. Direct and Cross Examination of Karin Kierzek in the case of State v. Trujillo, Court File No.: 19-T9-07-059472, December 15, 2008.
Admitting that the BCA received an updated copy of the source code that was deliberately not implemented, and failed to do side by side testing on the current version of the source code.
27. Cross Examination of Karin Kierzek in the case of Keeler v. Commissioner of Public Safety, Court File No.: 27-CV-08-18350, January 29, 2009.
Demonstrates known errors with the source code going deliberately uncorrected.
ADDITIONAL EVIDENCE THAT STATE HAS CONTROL OF SOURCE CODE
28. State of Minnesota Request for Proposal, Evidentiary Breath Alcohol Test Instruments, pages 7 and 22.
Defining Ownership of Copyrights to the Source Code (page 7, paragraph 27) and stating provisions for disclosure of information to defense counsel (page 22, paragraph 12).
29. CMI’s Response to Minnesota’s Request for Proposal, dated October 25, 1996.
This letter fully accepts the terms and conditions of the State’s Request for Proposal, incorporating these provisions into any future contract between CMI and the State of Minnesota.
30. Contract between CMI and the State of Minnesota..
Confirming that the terms in the State’s Request for Proposal were accepted by both CMI and the State of Minnesota.
31. Complaint filed in State of Minnesota v. CMI of Kentucky, Inc., U.S. District Court of Minnesota Civil Docket No. 0:08-cv-00603-DWF-AJB.
Averring that the State of Minnesota is the owner of the source code to the Intoxilyzer 5000 as the basis for the Complaint. This Complaint is also internally contradictory; compare paragraphs 22 and 24, which alternatively aver that the Minnesota BCA has and has not made prior requests for the source code. These paragraphs, in turn, can be compared to BCA toxicology expert Glen Hardin’s sworn testimony that as of November 6, 2007, the BCA had never attempted to obtain the source code from CMI.
32. Statements of Assistant Attorney General Emerald Gratz in the case of Cihlar v. Comm’r of Pub. Safety, Washington County Court File No. 82-CV-07-482 (March 11, 2008)
On-the-record statements by representative of the Attorney General’s Office that averments from the complaint that initiated the currently pending federal lawsuit related to the Source Code were merely, "for the purposes of initiating a federal lawsuit," and are supposedly "not an admission."
33. Cross Examination of Glen Hardin in the case of Quigley v. Comm’r of Pub. Safety, Sherburne County Court File No. CO-07-506 (November 6, 2007)
Testimony by BCA Expert Glen Hardin that neither he nor the BCA has ever attempted to obtain a copy of the source code to the Intoxilyzer 5000 from CMI.
34. Examination of Glen Hardin in the case of Hunter v. Comm’r of Pub. Safety, Sherburne County Court File No. 71-CV-08-694 (July 7, 2008)
Testimony by BCA Expert Glen Hardin explaining that the source code is a critical component of the Intoxilyzer 5000 and that the software "fail safes"controlled by the source code are necessary to render the test result scientifically valid and reliable.
35. Order of Federal Judge Donovan Frank in the case of State of Minnesota v. CMI, Inc. of Kentucky, CV-08-603, dated November 6, 2008.
Finding that Minnesota drivers were not adequately represented by the Attorney General’s Office with respect to the "source code" issue and stating that "as persons being prosecuted for DWI offenses using the results of the Intoxilyzer 5000EN as evidence, [Applicants] can claim an interest relating to the subject of this action and the disposition of the action may impair or impede their ability to protect their interest."
ALL DISCLOSED E-MAIL CORRESPONDENCE BETWEEN CMI AND THE MNBCA
Enclosed please find true and correct copies of all e-mail correspondence between CMI and the BCA, disclosed pursuant to a court order, including the previously cited e-mails that are relevant to the current motion to compel discovery.
INSTANCES OF ACTUAL ERRORS GENERATED BY THE INTOXILYZER 5000
A. Intoxilyzer Serial No. 68-010322, Test Results from 7-2-2006 and Usage/Maintenance Log spanning 5-2-2006 through 7-11-2006
B. Intoxilyzer Serial No. 68-010172, Test Results from 2-4-2007 and Usage/Maintenance Log spanning 12-4-2006 through 2-23-2007
C. Intoxilyzer Serial No. 68-010253, Test Results from 3-31-2007 and Usage/Maintenance Log spanning 1-31-2007 through 4-6-2007
D. Intoxilyzer Serial No. 68-010231, Test Results from 4-27-2007 and Usage/Maintenance Log spanning 2-27-2007 through 5-24-2007
E. Intoxilyzer Serial No. 68-010158, Test Results from 1-4-2008 and Usage/Maintenance Log spanning 11-4-2007 through 1-11-2008
F. E-mail Conversation between Patrick Pulju of the Minnesota BCA and Brian Faulkner of CMI, (disclosed pursuant to a court order and dated September 27-28, 2006).
CRIMINAL ORDERS COMPELLING THE DISCLOSURE OF THE SOURCE CODE
I. Order and Memorandum of Honorable Judge Skipper J. Pearson in State v. Rohde, Stearns County District Court File No. T8-06-17005 (February 7, 2007)
II. Order and Memorandum of Honorable Judge Kenneth A. Sandvik in State v. Pederson, Cook County District Court File No. CR-05-25 (November 20, 2006)
III. Order and Memorandum of Honorable Judge Patrice K. Sutherland in State v. Parten, Scott County District Court File No. 70-CR-06-15448 (August 20, 2007)
IV. Order and Memorandum of Honorable Judge Patrice K. Sutherland in State v. Nihart, Dakota County District Court File No. K3-07-1986 (September 12, 2007)
V. Order and Memorandum of Honorable Judge Donald J. Venne in State v. Sumstad, Anoka County District Court File No. 02-K1-07-953 (January 25, 2008)
VI. Order and Memorandum of Honorable Judge Jack Nordby in State v. Hagen, Hennepin County District Court File No. 27-CR-07-105717 (December 10, 2008)
VII.Order and Memorandum of Honorable Judge Paul Widick in State v. Keller, Stearns County District Court File No. K1-06-2880 (January 25, 2008)
VIII. Order and Memorandum of Honorable Judge William F. Thuet in State v. Rademacher, Dakota County District Court File No. K4-07-2581 (November 19, 2007)
IX. Order and Memorandum of Honorable Judge Edward Lynch in State v. Cramer, Dakota County District Court File No. K1-07-1338 (December 11, 2007)
X. Order and Memorandum of Honorable Judge Robert F. Carolan in State v. Harmon, Dakota County District Court File No. T7-07-70356 (October 11, 2007)
XI. Order and Memorandum of Honorable Judge Philip T. Kanning in State v. Adams, Carver County District Court File No. 10-CR-05-314 (October 12, 2007)
XII. Order and Memorandum of Honorable Judge Robert A. Awsumb in State v. Tagtmeir, Ramsey County District Court File No. T7-07-12699 (January 2, 2008)
XIII. Order and Memorandum of Honorable Judge Kevin W. Eide in State v. Zenobian, Carver County District Court File No. 10-CR-07678 (November 14, 2007)
XIV. Order and Memorandum of Honorable Judge Stephen J. Askew in State v. Reed, Anoka County District Court File No. 02-CR-07-10323 (May 2, 2008)
XV. Order and Memorandum of Honorable Judge Jon A. Maturi in State v. Halvorsen, Itasca County District Court File No.: 31-CR-07-4271 (March 12, 2008)
XVI. Order and Memorandum of Honorable John R. McBride in State v. Wiegele, Chisago County District Court File No.: 13-CR-07-1780 (July 1, 2008)
XVII. Order and Memorandum of Honorable Jack S. Nordby in State v. Gadow, Hennepin County District Court File No.: 27-CR-08-46085 (November 18, 2008)
CIVIL ORDERS COMPELLING THE DISCLOSURE OF THE SOURCE CODE
i. Order and Memorandum of Honorable Judge Robert F. Carolan in Chapman v. Comm’r of Pub. Safety, Dakota County District Court File No. C9-07-13737 (August 30, 2007)
ii. Order and Memorandum of Honorable Judge John R. McBride in Weidner v. Comm’r of Pub. Safety, Chisago County District Court File No. 13-CV-06-871 (October 11, 2007)
iii. Order and Memorandum of Honorable Judge David E. Doyscher in Peterson v. Comm’r of Pub. Safety, Washington County District Court File No. CV-07-5360 (October 10, 2007)
iv. Order and Memorandum of Honorable Judge Gary R. Schurrer in Wahlstrom v. Comm’r of Pub. Safety, Washington County District Court File No. CV-07-267 (December 21, 2007)
v. Order and Memorandum of Honorable Judge Cara Lee Neville in Sher v. Comm’r of Pub. Safety, Hennepin County District Court File No. 27-CV-07-20686 (April 18, 2008)
vi. Order and Memorandum of Honorable Judge Michael V. Sovis in Dambroten, et. al. v. Comm’r of Pub. Safety, Dakota County District Court File Nos. C2-07-14423; CX-07-12435; C9-07-14158; and C3-07-14415 (October 23, 2007)
vii. Order and Memorandum of Honorable Judge Kevin S. Burke in Diethart v. Comm’r of Pub. Safety, Hennepin County District Court File No. 27-CV-07-20566 (January 3, 2008)
viii. Order and Memorandum of Honorable Judge Donald J. Venne in Oslund v. Comm’r of Pub. Safety, Anoka County District Court File No. 02-CV-07-4966 (February 12, 2008)
ix. Order and Memorandum of Honorable Judge Martha M. Simonett in McNamara v. Comm’r of Pub. Safety, Dakota County District Court File No. C5-07-3223 (October 23, 2007)
x. Order and Memorandum of Honorable Judge Kenneth L. Jorgensen in McCullough v. Comm’r of Pub. Safety, Washington County District Court File No. CV-07-282 (January 11, 2008)
xi. Order and Memorandum of Honorable Judge Cara Lee Neville in Hald v. Comm’r of Pub. Safety, Hennepin County District Court File No. 27-CV-07-15230 (April 3, 2008)
xii. Order and Memorandum of Honorable Judge Lloyd Zimmerman in French v. Comm’r of Pub. Safety, Hennepin County District Court File No. 27-CV-07-11312 (April 14, 2008)
xiii. Order and Memorandum of Honorable Judge Mary J. Theisen in Reierson v. Comm’r of Pub. Safety, Scott County District Court File No. 70-CV-07-21950 (November 15, 2007)
xiv. Order and Memorandum of Honorable Judge Nancy J. Logering in Schwarz v. Comm’r of Pub. Safety, Anoka County District Court File No. 02-CV-07-4736 (November 29, 2007)
xv. Order and Memorandum of Honorable Judge Timothy J. McManus in Pedersen v. Comm’r of Pub. Safety, Dakota County District Court File No. C8-07-12305 (February 5, 2008)
xvi. Order and Memorandum of Honorable Leslie M. Metzen in Bettenberg v. Comm’r of Pub. Safety, Dakota County District Court File No.: C7-07-015955 (April 29, 2008)
xvii. Order and Memorandum of Honorable Judge Diane M. Hanson in Reierson v. Comm’r of Pub. Safety, Scott County District Court File No.: 70-CV-07-21950 (March 8, 2008)
xviii. Order of the Honorable Judge Gabriel D. Giancola in Mullen v. Comm’r of Pub. Safety, Hennepin County District Court File No.: 27-CV-08-6609
xix. Order of the Honorable Thomas W. Wexler in Breitenfield v. Comm’r of Pub. Safety, Hennepin County District Court File No.: 27-CV-07-14168 (November 13, 2008)
The State of Minnesota has confirmed what Ramsay & Associates first revealed more than six months ago. Minnesota's breath test machine, the Intoxilyzer 5000, periodically reports faulty test results. See, Lawyer Unveils Government's Efforts to Conceal Broken Source Code, Sept. 22, 2008. The manufacturer, CMI Inc., discovered the cause of the problem and provided a corrected version of the software. The state concealed the problem and refused to install the corrected version, fearing to inflame the so-called "source code issue."
"We had noticed on some instruments in some blowing patterns ..., the instrument doesn't willingly accept the breath sample," admitted a Minnesota Bureau of Criminal Apprehension forensic scientist under oath.
The Minnesota Lawyer, a weekly newspaper reported, "She said that CMI provided updated software to the BCA but 'we did not test it, we did not validate it, it was not approved, and it was not installed.' She said she 'believed' the software was not updated because of the ongoing source code litigation."
See, "More Intoxilyzer Arguments Bubble Up," from Minnesota Lawyer (password required). I am grateful Minnesota Lawyer is leading the media in telling this stunning story of government cover up. I am disappointed with other media outlets, attorneys, and government agencies who have turned a blind eye to this outrage.
Professor, Steve Simon, of the University of Minnesota and the Director of the Minnesota Criminal Justice System DWI Task Force, wants to urge the Task Force to recommend to the legislature, that it adopt legislation that would make the Intoxilyzer Source Code NOT subject to discovery in civil and criminal DWI cases. Therefore, denying the public of their Constitutional Sixth Amendment right to confront their accuser - even if the accuser is a machine.
The Minnesota Supreme Court has not yet issued its decision involving access to the Intoxilyzer Source Code, but they have rejected the proposed settlement by the Manufacture of the Intoxilyzer. The settlement stated that they would allow the accused to examine the Source Code, but only by a defense expert witness, and that witness would only be able to view the code at CMI’s headquarter in Owensboro, KY., in electronic form or by reading a 1,100 - page printout.
Between the bogus proposed Settlement of CMI of Kentucky, Inc. And Professor Simon recommending that legislature make it a law that the Intoxilyzer Source Code NOT be subject to discovery, no one is looking out for your Constitutional rights, or even your innocense, except Charles Ramsay. With his knowledge and persistence, you will get Results.
In a victory for attorneys who handle drunken-driving cases, a federal judge has rejected a settlement in the state's lawsuit against the maker of the Intoxilyzer breath-testing machine widely used by police in Minnesota.
The proposed settlement had several provisions that posed legal problems, with no way to tell whether a key issue — how best to give defense lawyers access to the machine's computer "source code" — had been adequately resolved, U.S. District Judge Donovan W. Frank wrote in a ruling issued Monday.
Frank's order means lawyers for the state and the manufacturer, CMI of Kentucky Inc., have to decide whether to try to negotiate a new settlement agreement or take the case to trial.
"We're looking at what the options are," said Tim O'Malley, superintendent of the Minnesota Bureau of Criminal Apprehension. "Clearly, we'd like to be able to resolve this with CMI, but if we need to proceed with the lawsuit, maybe we would."
A lawyer for CMI did not return a call for comment.
But Marsh Halberg, a lawyer representing the Minnesota Society for Criminal Justice, one of the groups that had objected to the proposed settlement, said he hopes the two sides will put more thought into a new agreement than they did the last one.
The case involves questions about the accuracy of the Intoxilyzer 5000EN, the standard device used by law enforcement in Minnesota to determine if a driver is impaired. The state bought 260 of the devices from CMI in 1997.
Minnesota law presumes Intoxilyzer results to be reliable. But lawyers representing people accused of driving while impaired have long challenged that assumption and have sought access to the machine's source code.
The code is the computer program the machine uses to analyze a person's breath sample for its blood-alcohol content. While some state judges have ruled that defendants don't have a right to examine the code, others have ruled that defendants can have access under the Sixth Amendment's guarantee that a person can confront his accuser — even if the accuser is a machine.
Lawyers sued the state for access to the code, only to be told the state didn't have it. The state said that only CMI had a copy of the source code and that the company considered it a trade secret and refused to turn it over.
The state then sued CMI in federal court for access to the code. The two sides reached a settlement last year, but before the court could approve the deal, lawyers' groups complained about the terms.
In particular, they complained that while the settlement seemed to allow them to examine the source code, the restrictions placed on those examinations made the plan unworkable. For example, a defense expert witness would be able to view the code only at CMI's headquarters in Owensboro, Ky., in electronic form or by reading a 1,100-page printout.
They would have access to the code only during normal business hours and wouldn't be allowed to copy or take the printout from a secure room.
"That was a great concern to us," Halberg said of the restrictions. "They thought there'd be a hard volume, but that would be of virtually no value. On the electronic format, there was a dispute among the experts how easily or how viable it would be, or what searchability that format would allow for."
In his ruling, Frank said there wasn't enough evidence before him to conclude whether the proposed settlement's terms for access were fair.
"In particular, the court cannot conclude that the parties' proposed mechanism for permitting access to the source code serves the public interest and made the source code 'readily and reasonably available,' " Frank wrote.
The judge also said he had problems with the requirement that the source code could be viewed only in Kentucky.
"(T)he court cannot approve a settlement that would require Minnesota litigants, some undoubtedly eligible for public defender services, to travel to Kentucky to obtain discovery regarding the source code," the judge wrote.
He said he also wasn't sold on the settlement's provision that a federal court would have a continued role in overseeing access. He said it was "unnecessarily cumbersome and injects the federal court into an area most likely best overseen by state courts."
The BCA's O'Malley said that he hoped the lawyers would reach an agreement the judge would approve but that his faith in the accuracy of the Intoxilyzer was unshaken.
"We stand behind the Intoxilyzer," he said. "We continue to encourage law enforcement to use it, and we continue to take the position that the source code is not relevant to the accuracy of the Intoxilyzer itself. ... We've tested this. It is accurate. It is reliable."
Court’s upset over CMI’s refusal to disclose the Source Code
According to an article in the Tucson Citizen, courts in Arizona may soon determine that the Intoxilyzer 8000, an updated version of the Minnesota Model Intoxilyzer 5000EN, is unreliable, leading to the dismissal of thousands of cases at once.
James Nesci, a Sustaining Member of the National College for DUI Defense, is the principal architect of the Arizona cases. He has become a national leader in the DUI Defense field, leading seminars around the country, including the 2001 and 2003 Summer Sessions of the National College for DUI Defense and a class on DUI Defense at the University of Arizona, James E. Rogers College of Law.
In 1997, Arizona courts found the RBT IV, a predecessor to CMI’s breathalyzer, to be unreliable and dismissed over 3,000 cases in a single day, and over 5,000 cases over the span of a few months. After defense attorneys had challenged the integrity of the RBT IV, prosecutors eventually acknowledged the machine’s problems and dropped the charges of over 5,000 people that had wrongfully been accused of driving under the influence.
Now, as courts and defense attorneys across the country have began to bring challenges to the integrity of the mysterious black boxes manufactured by CMI, they may be close to another mass exodus of DWI cases. The story notes how Toby Hall, the president of CMI, admitted that there were problems with earlier versions of software, but refused to notify testing agencies.
Despite these problems, along with those acknowledged in Minnesota, CMI has refused to allow defense attorneys and drivers the opportunity to meaningfully review the software that runs their machines. In Florida, CMI has racked up over $1,000,000 (One Million) in fines for refusing to comply with a court order mandating disclosure of the source code. (For more information on the Florida proceedings, visit the webpage of Attorney Robert Harrison at www.harrisonlawoffice.com) Judge Deborah Bernini from Arizona ordered CMI to release an electronic copy of the code, but according to defense attorneys, "a process server couldn’t get [CMI] to accept the court order." After hearing this, the Court set a hearing ordering CMI’s president to appear and "explain why [the Court] shouldn’t hold him and CMI in contempt for refusing to comply with [court] orders." When time for that hearing came around, Toby Hall never showed up, and instead blamed the whole dispute on the defense bar’s refusal to accept the electronic confidentiality code.
CMI has been willing to allow drivers to review the source code on paper, but only if they first sign a burdensome non-disclosure agreement. This confidentiality burden, along with their refusal to allow review of an electronic copy of the code has essentially rendered meaningful review of the Source Code impossible. John Fusco, President of National Patent Analytical Systems of Mansfield, OH and a former sales representative for CMI, has stated that, in the manner that CMI has been willing to disclose it, the source code is "completely useless in hardback."
Our law office is leading the charge both in Minnesota and in Federal Court to allow Minnesota citizens a meaningful opportunity to review the source code to these mysterious machines and be afforded their constitutional rights to present a meaningful defense and confront their accusers. For more information on this and other developments in the law, including details on the federal case of State of Minnesota v. CMI, Inc., please visit my website at www.ramsayresults.com.
The area of DWI law is always changing. From continually updated statutes and regulations to judicial interpretation and new case law, you have to stay on top of it all. Whether you are a seasoned DUI veteran or just getting started, this program will provide you with the latest updates on the most recent and hotly contested DWI law issues. Enroll today!
The Honorable Jack S. Nordby, a District Court Judge in Hennepin County, Minnesota, has ruled that disclosure of the Intoxilyzer source code was “not only relevant to this litigation (and to virtually any dispute involving Intoxilyzer evidence), but very likely indispensible [sic] to a proper hearing of such a case.”
In his order in the case of Minnesota v. Gadow (27-CR-08-46085, a full copy of which is below), the Court states that there is “good reason to believe these source codes will reveal defects in the Intoxilyzer device’s operations of a significance that makes the evidence exculpatory and constitutionally subject to mandated disclosure by the prosecution.” The Court also notes that even though the significant amount of evidence leads to the conclusion that there is a high likelihood that Source Code review would uncover previously hidden errors in the results of DWI tests, a much lower standard should be applied in a discovery motion. “No such showing,” the Court reasoned “need be made to support a simple discovery request as that under consideration here.”
The Court also commented that, when designing the Minnesota Model of the Intoxilyzer 5000, the State chose not to include an option that would preserve a driver’s breath sample. As a result of this choice by the State, a driver’s breath sample is discarded immediately after the machine finishes its secretive analysis, making further testing impossible. According to the Court, the State’s decision to opt out of the preservation feature on the Minnesota Model “results in routine destruction of potentially exculpatory evidence.”
Because of the design of the breathalyzer, the nature of computer construction and operation, and the destruction of a driver’s breath sample, “the potential for errors is enormous,” according to the Court, “the number of possible defects astronomical – literally in the millions or billions” and “[m]any, if not most, if not all of these are virtually immune from detection unless the source codes can be examined.
Continuing in its analysis about the mysteries of CMI’s black box, the Court noted that the courts have delegated their gate-keeping function of determining if the machine is functioning the way it is supposed to be to the machine itself. As a result, police officers testifying that machine is working properly only believe that because the machine said it was working properly. Such a delegation, according to the Court, constitutes an “abdicat[ion of] our non-delegable judicial duties, demeaning the separation of powers.”
The Court also noted that the breath testing landscape in Minnesota presents a situation “where juries and judges are asked to accept the word (virtually the verdict) of a machine that a person is guilty of a crime […] without being allowed to know how the machine reached its decision, or whether it did so reliably.” With the machine not being subject to cross-examination and destroying the breath sample provided by the driver, a serious question must be considered as to whether it results in a denial of a driver’s constitutional rights to confront their accusers and present a full and effective defense.
Concluding its analysis, the Court notes that what was before it was a simple discovery motion, “a simple and reasonable request by the defense to examine the fact-maker and surrogate fact-finder.” The Court held that not only are drivers entitled to Source Code review, but goes on to say that “defense [attorneys] would arguably be guilty of ineffectively assisting a client for not demanding the information.”
A PDF version of Judge Nordby’s order is available here, and the full text is included below.
On November 6, 2008 Federal Judge Donovan Frank gave permission to Minnesota drivers accused of DUI to become parties in the ongoing lawsuit between the State of Minnesota and CMI, Inc. of Kentucky, the manufacturer of the Intoxilyzer 5000. The Judge’s order reverses an earlier court ruling that denied individuals any part in federal suit.
The Court noted that under normal circumstances, governmental agencies are capable of protecting citizens’ rights and interests. Under the unusual circumstances of the Source Code litigation, however, the Court found the Minnesota Attorney General could not represent the interests of Minnesota drivers.
Last week, Minnesota attorney Charles A. Ramsay submitted mountains of accumulated evidence on the drivers’ behalf. The documents exposed that the State of Minnesota refused to fix known bugs in the software that operates the Intoxilyzer 5000.
As a result of this order, Minnesota citizens finally have the right to inspect the software of the Intoxilyzer 5000 free from the limitations previously imposed by the State and CMI. We have posted Judge Frank's order on our website.
Stay tuned for more information on this rapidly developing story...
We're fighting to expose Minnesota's source code lawsuit for the sham it is. To be successful, we need the help of the country's top experts. One of the most valuable team members is Tom Workman from Boston, Massachusetts.
1.Under normal circumstances an expert would need about three months to examine the Intoxilyzer’s source code. But, under the limitations of the proposed settlement, the same expert would need 30 years to conduct the same examination!
2.Known Fatal flaws in the Minnesota Software have and continue to produce erroneous results. The state crime lab is aware of the bugs in the source code, yet has refused to install the corrected version provided by CMI.
3.An expert in copyright law, Mr. Workman demonstrates how CMI transferred ownership of the software to the State of Minnesota under the original contract.
4.Federal patent statutes prevent CMI from asserting the software is a trade secret without violating federal law.
The Minnesota Source Code War would not be possible without the resolve of the members of the Minnesota Society for Criminal Justice; my dedicated staff at Charles A. Ramsay & Associates, PLLC; and Thomas Workman. Also, thanks to Attorney Ryan Garry for generously donating his time and expertise. Please obtain Mr. Workman’s permission before using his declaration.
Check back soon for more information, documents and analysis as the Minnesota Source Code War continues to rage …
Minnesota's breath test machine's software is broken. Roseville attorney Chuck Ramsay has exposed bugs in the source code, and is fighting for the right to have experts independently examine the software. The state of Minnesota and CMI, the breath test manufacturer, are fighting to keep it a secret.
Last week Fox9 ran a news story of the Intoxilyzer source code battle.
Last week the Minnesota Commissioner of Public Safety, CMI -- the Intoxilyzer manufacturer, and my firm filed more documents in federal court.
CMI and the Minnesota Attorney General are asking a federal judge to issue a permanent injunction to keep drivers' experts from independently reviewing the Intoxilyzer software.
The media is beginning to recognize the significance of Minnesota's broken Intoxilyzers -- innocent people are losing their licenses, their way of life and their freedom.
CBS affiliate, WCCO, broadcast a story of one of our firm's clients. The Minnesota breath test machine erroneously reported "CW" had refused to submit to a breath test. As a result, under Minnesota law, she lost her license for one year and now faces criminal charges that impose four times the amount of jail than if she had failed the test (over .08).
The reason for the erroneous test results: the machine's software contains bugs. State officials and CMI, the manufacturer, are fighting to keep us from examining the source code.
See WCCO's story below, and the the blog entries about the source code battle and proof of some of the fatally flawed software.
The only way to ensure justice for Minnesotans is to immediately stop all breath testing in Minnesota until the problem is corrected.
Contact Chuck Ramsay immediately if the state is attempting to use the Minnesota Intoxilyzer to take your license or send you to jail.
The AG-CMI Settlement Does Not Help, But Hinders Drivers' Ability to Inspect the Intoxilyzer Source Code.
The Minnesota Attorney General (AG) last month reached a source code agreement with CMI , the Intoxilyzer 5000 manufacturer, which purportedly requires the Kentucky company to produce the machine's source code. The AG filed suit in federal court in March to force CMI to turn over the source code to the state and Minnesota drivers accused of DWI. In a September 12 press release, Public Safety Commission Michael Campion claimed victory over CMI. "By settling this lawsuit, we accomplish our goal of gaining access to the source code...," said Campion in a press release. The settlement must be approved by a federal court judge.
CMI is not required to produce THE source code. Instead it will produce a document derived from the source code but is stripped of essential compenents, precluding meaningful examination. The agreement also makes any examination cost prohibive.
Minnesota Judges will likely defer to the federal court judge. Should Judge Frank approve the settlement, drivers will be limited to the AG's agreement with CMI and will be denied any meaningful review of the source code. MORE>>>
Minnesota is convicting innocent drivers of DWI as part of a conspiracy to conceal fatal flaws in the software that controls breath-testing machines used in drunk driving investigations, attorney Chuck Ramsay says.
The current version of Intoxilyzer 5000 software - in use since 2004 - inflates accused DWI drivers' blood alcohol content readings, Ramsay said. In addition, the machine now requires a much larger breath sample than most drivers are physically able to provide. Those who can't provide a sufficient sample are charged with chemical test refusal, a more serious offense in Minnesota than DWI. Many plead guilty to the less severe DWI crime, waiving their right to challenge the breath test result.
Chuck Ramsay's Breath Test Machine: Intoxilyzer 5000, Manufactured by CMI, Inc.
The machine's manufacturer, CMI of Owensboro, Kentucky, attempted to correct the problem in April 2007 by providing the state with updated software. Minnesota officials, however, have refused to install the updated software in its Intoxilyzer machines, leaving the critically flawed software in use, Ramsay said.
"Thousands of people may have been harmed by the defective software. As long as they refuse to fix the problem, many more innocent citizens will be affected," he said.
For more information about Minnesota's refusal to address critical flaws in its breath-testing technology, please contact DWI attorney Chuck Ramsay at 651.604.0000. Ramsay has posted government documents on his website supporting his claim.
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.
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.
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.
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.
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA State of Minnesota
by Michael Campion, its Commissioner of Public Safety,
Plaintiff, [PROPOSED] CONSENT JUDGMENT AND PERMANENT INJUNCTION CMI of Kentucky, Inc.,
a Kentucky corporation, Defendant.
WHEREAS, this Consent Judgment, including the Permanent Injunction, is intended to resolve the above-captioned litigation between the State of Minnesota, by Michael Campion, its Commissioner of Public Safety ("State"), and CMI of Kentucky, Inc. ("CMI") (collectively "Parties"), regarding ownership of, and access to, the source code ("Source Code") for the Minnesota version of the Intoxilyzer 5000EN, the breath-alcohol testing instrument used to enforce the driving while impaired ("DWI") laws in Minnesota; and
WHEREAS, by a contract awarded in January 1997, the State bought a fleet of Intoxilyzer 5000EN breath-alcohol testing instruments from CMI, which are used to test the breath alcohol concentration of persons who may be charged with violations of Minnesota's driving while impaired laws; and
WHEREAS, an individual arrested for DWI in Minnesota faces both civil and criminal consequences. First, a person arrested for DWI is subject to criminal prosecution under the criminal DWI laws, which may include criminal charges, fines, and possible incarceration. Second, a person arrested for DWI who fails or refuses to submit to chemical testing is subject to civil remedial measures under the Implied Consent Law, which includes revoking the driver's license and recording the offense on the driver's record, as well as the impoundment of license plates and vehicle forfeiture where appropriate; and
WHEREAS, the issue of access to the Source Code first arose in early 2006, when the MN DPS began receiving motions for production of the Source Code from individuals arrested for DWI and challenging the validity of their breath test results in the state district courts. Although these discovery motions have been denied in the majority of cases, the discovery motions have been granted in some cases and some of those cases have been dismissed based on the MN DPS's inability to produce the Source Code; and
WHEREAS, CMI considers the Source Code to be a valuable trade secret and has only rarely granted access to parties outside the company under carefully considered and rigorous restrictions; and
WHEREAS, the State filed suit against CMI in this Court on March 3, 2008, claiming that it owns all or some part of the Source Code by virtue of an assignment provision in the Parties' contract, that the State possesses a copyright interest in the Source Code that CMI has infringed, and that the Parties' contract obligates CMI to provide the Source Code to petitioners in implied consent cases and defendants in criminal DWI cases in certain circumstances; and
WHEREAS, CMI filed its Answer to the State's Complaint on April 9, 2008, denying the State's claims and asserting counterclaims for declaratory judgments that it owns the entire Source Code and that the Source Code is a trade secret; and
WHEREAS, since the inception of this matter, the Court has strongly encouraged the Parties to negotiate a reasonable settlement; and
WHEREAS, the Parties, wishing to avoid the cost, risk, uncertainty, and delay of further protracted and expensive litigation, including likely appeal, have entered into a Settlement Agreement ("Settlement Agreement") that is contingent upon the entry of this Consent Judgment and Permanent Injunction ("Consent Judgment"); and
WHEREAS, in furtherance of and in conjunction with the Settlement Agreement, the Parties, have consented to the entry of this Consent Judgment; and
WHEREAS, the Court has carefully considered the validity and reasonableness of this Consent Judgment, and based upon its Findings of Fact and Conclusions of Law;
NOW, THEREFORE, IT IS HEREBY ORDERED:
I. JURISDICTION AND VENUE
The State's Complaint sets forth a cause of action under the Copyright Act, 28 U.S.C. §§ 101 et seq., as well as the common law of Minnesota. Accordingly, this Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1338(a), and 1367. Venue is proper pursuant to 28 U.S.C. § 1391(a)(2), as a substantial part of the events giving rise to the action occurred in this judicial district.
II. THE SETTLEMENT AGREEMENT
The State and CMI mutually desire to make the Source Code readily and reasonably available to defendants and petitioners subject to Minnesota's DWI and implied consent laws under circumstances and conditions that adequately recognize and protect CMI's interest in its intellectual property. Therefore, to avoid further cost, risk, and uncertainty associated with protracted litigation in this case, including likely appeal, the Parties have entered into a Settlement Agreement. The Settlement Agreement is expressly contingent upon the Court's entry of this Consent Judgment and is fully incorporated herein by reference.
III. FINDINGS OF FACT
Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the stipulations, and evidence presented by the Parties, the Court finds the following:
In January 2007, the State and CMI entered into a contract through a Request for Proposal ("RFP") issued by the State, a responsive Proposal submitted by CMI, and a Notification of Contract Award by the State (collectively the "Contract"). Pursuant to the terms of the Contract, CMI sold Intoxilyzer 5000EN breath-alcohol testing instruments to the Minnesota Department of Public Safety ("MN DPS"). There are approximately 200 Intoxilyzer 5000EN instruments being used by law enforcement agencies throughout Minnesota. The documents attached hereto as Exhibit 1 constitute the full and complete initial Contract between the State and CMI for the sale and maintenance of the "Minnesota model" of the Intoxilyzer 5000EN.
The specific phrase "source code" does not appear within the Contract. An assignment provision assigns only such "copyrightable material which [CMI] shall conceive or originate ... and which arises out of the performance of this Contract." (Ex.1.) CMI has presented substantial evidence that the majority of the Source Code was conceived and originated prior to the execution of the Contract. (Affidavit of Toby Hall ("Hall Aff."), attached hereto as Exhibit 2.) The State currently has no evidence to rebut CMI's evidence. Based on the evidence presented, the Court finds that the majority of the Source Code was conceived and originated prior to the execution of the Contract.
The topic of "access" to the Source Code is also not specifically addressed in the Contract; rather, the Contract merely references CMI's provision of "information" to be used in connection with litigation. (Ex. 1.) The Court finds that the Contract clearly contemplates that such information includes the Operator's Manual for the Intoxilyzer 5000EN but does not expressly identify or specify the scope of other "information," if any, to be provided by CMI.
The Intoxilyzer 5000EN instruments are used by various law enforcement agencies throughout Minnesota to administer alcohol concentration tests on individuals arrested for DWI. (Affidavit of Emerald Gratz ("Gratz Aff."), attached hereto as Exhibit 3.) More than 30,000 drivers are arrested for DWI every year in Minnesota. (Gratz Aff.) Although the problems associated with DWI occur nationwide, the problem appears to be worse in Minnesota: in 2003, alcohol-related fatalities increased in Minnesota by 4.3% while declining in 28 other states. (Id.) Repeat drunk drivers pose a particular problem for law enforcement in Minnesota: in 2003, 41% of drivers arrested for DWI in Minnesota were repeat drunk drivers. (Id.) The use of breath testing is a highly valuable tool for addressing the problems posed by repeat drunk drivers because studies have shown that the sooner an individual arrested for DWI faces consequences, the less likely that person is to re-offend. (Id.) Pursuant to Minnesota statutes and case law, the results of a breath-alcohol test administered using an Intoxilyzer 5000EN are presumptively valid. See Minn. Stat. § 169A.03, subd. 11 (2008); Minn. R. 7502.0420 (2008); Jasper v. Commissioner of Public Safety, 642 N.W.2d 435 (Minn. 2002).
The issue of access to the Source Code first arose in early 2006, when the State began receiving demands for production of the Source Code from individuals arrested for DWI and challenging the validity of their breath test results in both criminal DWI and implied consent cases in state court. (Gratz Aff.) State courts have ordered production of the Source Code in over one hundred criminal DWI and implied consent cases statewide. (Id.) However, the State has never possessed a copy of the Source Code. (Id.) Based on these orders, the State asked CMI to produce the Source Code and CMI eventually agreed to do so, but only upon the entry of a protective order in the DWI or implied consent case that was satisfactory to CMI, including the execution of a non-disclosure agreement by the person(s) receiving access to the Source Code, and reimbursement by the defendant or petitioner to CMI for its costs incurred in binding and mailing the Source Code. (Id.) If a state court refused to issue a protective order and require a non-disclosure agreement that were acceptable to CMI or to order the requesting party to pay CMI's cost of producing the Source Code, CMI declined to make the Source Code available. (Id.)
CMI produced the Source Code in one case at a cost to the defendant of $1,675.00 (actual cost to CMI was $2,039.00). (Hall Aff.) In cases where the state district court ordered production of the Source Code and it was not produced, some state district courts subsequently dismissed both DWI and implied consent cases. (Gratz Aff.)
Faced with the potential consequences of having breath test results suppressed based on the Source Code issue, some criminal prosecutors in Minnesota advised their police departments to stop using the Intoxilyzer 5000EN and to instead opt for either blood or urine testing. (Gratz Aff.) These decisions have had a significant negative impact on the Minnesota Bureau of Criminal Apprehension ("BCA") because fluid tests, which require BCA scientists to test a fluid sample, cost more money to process than breath tests. (Id.) In addition, the added fluid tests for DWIs are competing for resources with BCA fluid tests for other criminal cases, including DNA testing for murder, assault and rape cases, and controlled substance cases. (Id.) Furthermore, the State's inability to produce the Source Code has impacted the Minnesota judicial system with the increased filings of motions seeking discovery of the Source Code in criminal DWI and implied consent cases, which has taxed already strained judicial resources. (Id.) The Court finds that this has disrupted the effective functioning of law enforcement agencies and the state court system regarding the proper enforcement and adjudication of Minnesota's DWI laws, which are critical to the safety of the citizens of Minnesota.
The Court finds that the Source Code is not generally known or readily ascertainable. (Hall Aff.) The Court also finds that CMI has made reasonable efforts to maintain the Source Code's secrecy, and that the Source Code derives independent economic value from its continued secrecy. (Id.)
The Court finds that providing the Source Code in printed, hardbound book format, with stitched bindings, marked "Do Not Copy" on each page, and in the digital format described in paragraph 3 of the Permanent Injunction will provide reasonable access while also reasonably protecting the Source Code's trade secret status. (Hall Aff.) The Court finds that production or reproduction of the Source Code in any electronic format other than the digital format described in paragraph 3 of the Permanent Injunction presents an undue and unreasonable risk to its trade secret status due to the ease with which electronic and digital data may be copied and transmitted, and the near impossibility of completely deleting or removing electronic or digital data once it has been loaded into a computer system. (Id.)
The Court finds that the Source Code contains various security features and menu passcodes, the disclosure of which would seriously compromise the security of the State's networked system of Intoxilyzer 5000EN breath-alcohol test instruments. (Hall Aff.) The Court therefore finds that the provision of the Source Code with critical security features and menu passcodes redacted will provide reasonable access while also reasonably protecting the State's networked system of Intoxilyzer 5000EN breath-alcohol test instruments.
IV. CONCLUSIONS OF LAW
Applying the law to its findings, the Court now concludes:
After careful review of the Contract and the evidence currently before the Court, the Court concludes that the State does not own all of the Source Code under the Contract's assignment provision because the majority of the Source Code was conceived and originated prior to the execution of the Contract, and, therefore, was not assigned to the State.
The Court concludes that it need not resolve the question of whether the Source Code is "information" that the Contract requires CMI to produce to petitioners in implied consent cases and defendants in criminal DWI cases because the terms under which the Source Code will be made available pursuant to the Settlement Agreement are materially no different, and in some respects are more favorable, than if the State had prevailed on this claim.
Based on its finding that the State's inability to provide access to the Source Code has caused a disruption to the enforcement and adjudication of Minnesota's DWI laws, the Court concludes that the State has suffered and will continue to suffer substantial and irreparable harm. Based upon its finding that the disclosure of the Intoxilyzer 5000EN network security features and menu passcodes would compromise the security of the State's networked system of Intoxilyzer 5000EN breath-alcohol test instruments, the Court concludes that disclosure of those security features and menu passcodes would also cause the State to suffer irreparable harm. For each of these reasons, the Court concludes that entry of a Permanent Injunction is necessary and appropriate. The Court also concludes that the likely harm to the State in the absence of this Permanent Injunction outweighs any burden upon CMI resulting from the issuance of the
Permanent Injunction.
Based upon its findings that the Source Code is not generally known or readily ascertainable, that CMI has made reasonable efforts to maintain the Source Code's secrecy, and that the Source Code derives independent economic value from its continued secrecy, the Court concludes that the Source Code is a trade secret as defined under the Minnesota Uniform Trade Secrets Act, Minn. Stat. § 325C.01, subd. 5 (2008).
Because the Source Code is a trade secret and its public disclosure would cause CMI to suffer substantial and irreparable harm, the Court concludes that entry of the Permanent Injunction is also necessary and appropriate to reasonably protect the Source Code. The Court concludes that the likely harm to CMI in the absence of this Permanent Injunction outweighs any burden upon the State resulting from the Court's issuance of the Permanent Injunction.
Finally, the Court concludes that the entry of this Consent Judgment, and the Permanent Injunction set forth below, serves the public's interest by providing a mechanism under which the Source Code can be made readily and reasonably available at no cost to petitioners in implied consent cases and defendants in criminal DWI cases, subject to a reasonable protective order and non-disclosure agreement in a form commonly used in litigation, to prevent undue risk to the security of the State's networked system of Intoxilyzer 5000EN breath-alcohol test instruments or to the Source Code's trade secret status.
V. PERMANENT INJUNCTION
Pursuant to the All Writs Act, 28 U.S.C. § 1651, and Rule 65 of the Federal Rules of Civil Procedure, the Court orders that CMI shall make the Source Code available to Authorized Minnesota litigants (as defined in Paragraph 4, below), their counsel, or their experts for inspection and review, subject to the following terms and conditions:
Pursuant to the Settlement Agreement and the Consent Judgment, not later than ten (10) days after the execution of this Consent Judgment, CMI shall make the Source Code available to Authorized Minnesota litigants, their counsel, or their experts, for inspection and review, at CMI's corporate headquarters in Owensboro, Kentucky. CMI shall not charge Authorized Minnesota litigants, their counsel, or their experts any fee for such access to the Source Code for inspection and review.
CMI shall make the Source Code available to Authorized Minnesota litigants, their counsel, or experts, during regular and reasonable business hours, excluding weekends, holidays, and any days when CMI is not open for regular business purposes. Under no circumstances shall the Source Code leave the custody of CMI.
CMI shall make the Source Code available to Authorized Minnesota litigants, their counsel, or their experts in two formats: (1) a printed, hardbound book form, and (2) a digital format located on a secured computer at CMI's facility.1 The Source Code shall be full and complete in all respects except that Source Code language controlling the instrument's network security features and menu passcodes shall be redacted. Access to the redacted portion of the Source Code may be sought by Authorized Minnesota litigants as set forth in Paragraph 6, below. Both the printed and digital forms of the Source Code, and the entire contents thereof, shall remain at all times at CMI's facility in Kentucky and the exclusive property of CMI.
A petitioner in an implied consent case, the Commissioner of Public Safety, a defendant in a criminal DWI case, or the State, county, or local prosecuting authority, shall be an Authorized Minnesota litigant if all three of the following requirements are fulfilled: i) production of the Source Code has been ordered by the state district court judge presiding over the implied consent or criminal DWI case; ii) the state district court judge has issued a Protective Order in the criminal DWI or implied consent case that designates the Source Code and any information relating to the Source Code as confidential, protects such confidential information from disclosure to persons or entities outside the litigation, and requires that the confidential information be destroyed within thirty (30) days of the final termination of the litigation (including appeals); and iii) the person(s) receiving access to the Source Code has executed a Non-Disclosure Agreement in the form attached hereto as Exhibit 5. The provision of access to the Source Code for purposes of inspection and review shall not confer any other right, title, license, or interest in the Source Code to any person or entity.
CMI shall not be required to provide access to the Source Code to any person who is, or has been, employed by (as an employee, agent, or consultant) or otherwise affiliated with, any manufacturer of breath alcohol testing equipment within the preceding twenty-four (24) months.
Access to the redacted Source Code security features may be sought by a Motion to this Court brought by any Authorized Minnesota litigant, provided that the Motion must be accompanied by a sworn affidavit from an expert witness attesting that he or she has: i) fully examined a copy of the Source Code held by CMI; ii) concluded that it is reasonably likely that a problem exists with the instrument's ability to accurately and reliably measure the defendant's or petitioner's breath alcohol concentration; and iii) the instrument's ability to accurately and reliably measure a test subject's breath alcohol concentration cannot be ascertained without an inspection and review of the redacted network security features and menu passcode information. This sworn affidavit must describe the alleged problem with specificity and describe in detail why access to the redacted network security features and passcode information is necessary. Any such Motion must adhere to the requirements of Local Rule 7.1(b) ("Dispositive Motions") and notice of the Motion must be served upon CMI and the MN DPS in accordance with Rule 5 of the Federal Rules of Civil Procedure. The movant shall bear the burden of proof on any such Motion by a preponderance of the evidence. If the Motion is granted, the moving party, the Commissioner of Public Safety, or the State, county, or local prosecuting authority, along with his, her, or its counsel and expert shall be granted access to inspect and review the redacted portion of the Source Code at CMI's headquarters in Owensboro, Kentucky. CMI shall not charge Authorized Minnesota litigants, their counsel, or their experts any fee for such access to the redacted portions of the Source Code for inspection and review.
This Injunction is Permanent in nature. It shall continue in full force and effect until it has been vacated by this Court or other court of competent jurisdiction, or until such time as the State has completely discontinued use of the Minnesota version of the Intoxilyzer 5000EN instrument for evidentiary purposes and the time for appeal of any conviction or revocation involving such evidence has run.
VI. CONTINUING JURISDICTION
This Court shall maintain continuing jurisdiction over this Consent Judgment and Permanent Injunction. This Consent Judgment and Permanent Injunction are governed by federal law and may be modified only in accordance with the Federal Rules of Civil Procedure and applicable law.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: , 2008
The Honorable Donovan W. Frank United States District Court Judge
1 Specifically, access to the digital format shall be provided as follows: digital access to all of the human readable source files for all of the processors that are required to create the executable image(s) for the Intoxilyzer 5000EN. The term source code includes all assembly files and C code files that are required to build these executable images. The term "digital access" implies the capability to do digital text searches. The computer system that these files are to be viewed from will have searching capabilities. ___________________________________________________________________
Coming Next ...
How Minnesota dishonestly slithered into federal court to meet the court's jurisdictional requirement and Why!
Charles A. Ramsay Attorney at Law Charles@RamsayResults.com
MINN ATTORNEY GENERAL & CMI SEEK PERMANENT INJUNCTION
"THE AG DIDN'T FILE SUIT TO FIGHT FOR THE SOURCE CODE, IT SUED TO KEEP US FROM GETTING IT." - Charles A. Ramsay
Today the Minnesota Attorney General and CMI filed the terms of their Source Code settlement in federal court. The agreement permits CMI to deny full access to the inner workings of the Intoxilyzer 5000. In March the Minnesota Attorney General apparently to enforce the contract with CMI, the breath test machine manufacturer. Instead, the AG is now asking a federal court judge to order a permanent injunction to prevent lawyers and citizens from requesting or obtaining independent review of the software which controls all of the machine's functions.
Charles Ramsay, a Minnesota lawyer, filed a motion in June to intervene. At the time Ramsay predicted the AG would not act in the best interests of Minnesotans . Both the state and CMI oppose Ramsay's motion.
"The AG didn't file suit to get the source code, she sued to keep it secret," said Ramsay upon learning of the settlement. "Our citizens are worse off now than before the AG filed suit. This is precisely the reason the court must grant intervention."
The federal court judge will hear arguments in December to evaluate the merits of the proposed settlement.
The fight over the Intoxilyzer source code in Minnesota continues to become more heated. With the information I've obtained, the BCA agents behind Minnesota's breath test machine should become redder in the face -- due not only to the increasing heat, but in response to documents revealing more of the state agency's half-truths.
The BCA toxicologists and their supervisors have repeatedly testified -- under oath -- that the software is not important (among other misleading statements) to the outcome of Intoxilyzer tests. The well-intentioned, but mis-guided, assistants attorney general regurgitate the government propaganda to judges when arguing against drivers' motions for discovery of the software. Unfortunately some Minnesota judges apparently buy the government mantra and rule against drivers' request to analyze the source code, depriving them of fundamental constitutional rights (e.g., Right to Present a Meaningful Defense, Confrontation, and Due Process).
Amazingly, these judges make Findings of Fact that the software does not "relate to the guilt or innocence" of those accused of drunk driving.
Here is a memo the BCA once published on its website:
On February 4 the Office of the Minnesota Attorney General learned of the admissions contained in the memo. It was then promptly removed and edited, deleting the language that contradicted the government's standard line.
Some judges continue to side with the Intoxilyzer's manufacturer and against Minnesotans. Why? To protect CMI's profits? To avoid the inconvenience of granting the requests? Grave concern over what defense experts will find behind the black curtain?
While we may never know their motives, we do know their justification is absurd.
1. The Intoxilyzer will not operate at all without the source code;
2. The source code controls operation of every aspect of the Intoxilyzer -- from ensuring minimum scientific safeguards are employed, to analyzing the breath sample and determining the alleged alcohol concentration;
3. The BCA acknowledges/ed that the source code is "important" to the machine's operation.
How can anyone find the software does not "relate to the guilt or innocence " of a driver when the BCA has admitted the source code is "important" to the Intoxilyzer's operation? The secret machine that determines the drivers' guilt?
If you have been charged with DWI/DUI or test refusal in Minnesota, you can prevail with the right attorney. Contact Chuck Ramsay right away to learn what the Attorney General and BCA don't want you to know.
The Minnesota Court of Appeals rejected a driver's appeal to order the state to disclose the "source code" which operates the state's breath test machines. See State v. Olcott, (Minn. Ct. App., 4/15/2008).
In emphasizing the low standard on the driver to meet his burden, it noted the driver's attorney did nothing more than make a bald assertion that the source code is related to the case.
"We have no quarrel with Olcott's underlying propositions that an accused should be allowed to examine the evidence against him and, generally, he should be allowed to discover information that could lead to admissible evidence. But we fully agree with the district court that Olcott has offered only a 'bald assertion' and legal arguments in support of his discovery requests.
"We find nothing in the district court record that even marginally attempts to satisfy the rule 9 'showing' requirement. Olcott has not attempted to show what a 'source code' is; or how it fits into the operation of the Intoxilyzer; or what its precise role is in regulating the accuracy of the machine; or what possible deficiencies could be found in a source code; or how significant any deficiencies might be to the accuracy of the machine's result; or whether testing of the machine (which he is permitted to do) cannot reveal potential inaccuracies without also knowing the source code. Olcott seems to suggest that his request for the source code needs no technical explanation, that the thing speaks for itself, and that his mere assertion makes the need for the source code obvious. But this is the realm of a type of expertise beyond ordinary knowledge. Olcott implicitly concedes that fact when he argues that even the expert Intoxilyzer operators cannot testify to the method of producing the result. By presenting only argument on the discovery issue, Olcott left the district court, and this court, to speculate.
Because Olcott has made no 'showing' whatsoever of how the Intoxilyzer 5000EN source code relates to his guilt or innocence, negates his guilt, or reduces his culpability, we conclude that the district court did not abuse its discretion in denying Olcott's motion to compel production of the source code for the machine.
Affirmed.
PRACTICE TIP:
The Minnesota Court of Appeals has recognized the standard is very low. The burden is easily met merely be presenting documentation within the public domain. The manufacturer (CMI), and the state (Bureau of Criminal Apprehension (BCA)) agree the software operates the Intoxilyzer and every essential function.
"A multiprocessor system employing a microprocessor controls the general operation of the instrument from information display to printer operation, keyboard interface, and electro-mechanical functions. A separate microcontroller is used for optical signal processing which increases the system's signal handling.
"The microprocessor includes 56K EPROM (erasable programmable read only memory), 32K of battery-backed RAM and 8K of Scratch RAM (Random Access Memory). Additionally, the microcontroller has a separate 64K EPROM available and a separate 8K scratchpad RAM. Every aspect of operation, from displaying and printing of information to the basic electrical and mechanical functions, is micro-computer controlled.
Also click here to see the BCA's recent posting (Admitting "The source code is important because it determines what programming is loaded into the Intoxilyzer - basically, it tells the Intoxilyzer how to interpret the physical data it receives when someone blows into the device.").
Finally, look at Tennessee's Validity Studies where it calls the software "critical" to the evaluation of the product.
To ensure your rights are protected, turn to a profession who knows how to win. Contact Chuck Ramsay, Today!
Charles A. Ramsay Attorney at Law Charles@RamsayResults.com
All of today's breath test machines are run by a computer and software runs the computer. The software is represented by source code (set of procedures and instructions that run the computer) and is translated into machine language and stored in the Electronic Programmable Read Only Memory (EPROM).
The Intoxilyzer's computer utilizes the Z-80 microprocessor - the 1970s era chip that ran the Radio Shack's Tandy Z-80 computer. The EPROM handles all of the machine's primary functions. An integrated circuit combines a clock, calendar, volatile memory and backup battery. The battery maintains the data generated of all tests until the BCA downloads the data via modem to a host computer for long term storage. The software stored in the chip is responsible for ensuring proper administration of the test, including operation of the scientifically required safeguards necessary to ensure the test results are valid, accurate and reliable.
All new software has bugs. Although software engineers use patches and updates to correct the problems, errors begin to develop. This may lead to invalid, erroneous or unreliable results. In the world of DWI breath testing, even a tiny error may determine whether drivers lose their license, their vehicle or their freedom.
Defense attorneys around the country are challenging the validity of breath test results by focusing on the source code. Claiming that courts treat the machine as a magic box, many are seeking the source code to determine if it runs the machine with the necessary safeguards while performing as the government and manufacturers claim.
The following analysis is based on Minnesota law and procedure.
Rules of Discovery
Criminal - Misdemeanor
Rule 7.04 of the Minnesota Rules of Criminal Procedure governs discovery of misdemeanor DWI prosecutions. Under the rule, defendant are entitled to a copy of police reports; all other discovery is available by the agreement of the parties or order of the court. Minn. R. Crim. P. 7.04 & cmt. The comments to rule 7.04 direct the court to rule 9 when determining whether to order any additional discovery. Because the rules governing discovery of additional information in misdemeanor DWI prosecutions are identical to those in gross misdemeanor and felony prosecutions, the issues will be addressed below.
Criminal - Gross Misdemeanor & Felony
Rule 9 of the Minnesota Rules of Criminal Procedure governs discovery in gross misdemeanor and felony cases. The rule requires the prosecutor to provide the defendant with access "to all matters within the prosecuting attorney's possession or control which relate to the case" and to "disclose and permit defense counsel to inspect and reproduce books, grand jury minutes or transcripts, law enforcement officer reports, reports on prospective jurors, papers, documents, photographs and tangible objects which relate to the case." Minn. R. Crim. P. 9.01, subd. 1(3). The prosecutor must also disclose to the defendant any evidence "that tends to negate or reduce the guilt of the accused." Minn. R. Crim. P. 9.01, subd. 1(6).
In addition to the material that the prosecutor must disclose, the defendant may move the court to order additional discovery of "any relevant material and information not subject to disclosure without order of court under Rule 9.01, subd. 1." Minn. R. Crim. P. 9.01, subd. 2(3). The defendant's motion must be supported by a showing that the material or information sought "may relate to the guilt or innocence of the defendant or negate the guilt or reduce the culpability of the defendant as to the offense charged." Id.
Whether the source code is available to the defendant in a DWI prosecution turns on the district court's determination of relevance and discoverability. Defendants seeking discovery of the Intoxilyzer source code must show that the source code relates to the defendant's guilt or innocence or can negate the defendant's guilt. Even if the defendant makes a showing of relevance, the prosecutor may preclude discovery by showing that the source code is not discoverable or not within the possession or control of any governmental agency. Minn. R. Crim. P. 9.01, subd. 2(1), subd. 3. This is a hotly debated topic.
Civil - Implied Consent
When a driver petitions for judicial review of a license revocation, the Commissioner of Public Safety is required to provide the driver with notice of the license revocation, the test record, the police officer's certificate and any accompanying documentation from the arrest, and disclose any potential witnesses. Minn. Stat. § 169A.53, subd. 2(d)(l)-(4). Any additional discovery is only available through order of the court. Id. Because implied consent hearings are civil hearings, the rules of civil procedure apply. The driver may move the district court to order discovery of "any matter, not privileged, which is relevant to the subject matter involved in the pending action." Minn. R. Civ. P. 26.02(a). The discovery sought need not be admissible at trial as long it is reasonably calculated to lead to admissible evidence. Id.
Discovery of the source code in an implied consent hearing turns on the district court's determination the source code is relevant to the grounds for the license revocation. The discovery rule in civil proceedings is sufficiently broad to allow discovery of inadmissible information, as long as the party seeking the information can show that it might reasonably lead to admissible evidence. If the petitioner's license was revoked after a failed breath test, then the petitioner is specifically entitled to challenge the validity of the breath test under Minn. Stat. § 169.53, subd. 3(10). Because the source code determines how the Intoxilyzer collects and processes the driver's breath sample, any irregularities or shortcomings in the source code could render the test results invalid.
In re Commissioner of Public Safety (Underdahl)
The Minnesota Supreme Court addressed the source code issue last summer in In re Commissioner of Public Safety, 735 N.W.2d 736 (Minn. 2007)(Underdahl). In Underdahl, the district court ordered the commissioner to provide the petitioner with the Intoxilyzer source code. Id. at 709. The commissioner then petitioned the court of appeals for a writ of prohibition to prevent the district court from enforcing its discovery order. Id. The court of appeals denied the commissioner's petition. Id.
The supreme court first considered the commissioner's argument that a writ of prohibition is appropriate because the district court lacked jurisdiction to order discovery of the source code in light of the presumptive reliability of the Intoxilyzer test results. Id. at 711. The supreme court rejected this argument, noting that the petitioner in an implied consent hearing is explicitly entitled to challenge the reliability and accuracy of the breath test results despite the statutory presumption. Id.
The supreme court also considered whether the district court's order was an abuse of discretion. Id. In light of the district court's wide discretion to issue discovery orders" and the liberal construction afforded to the remedial discovery rules, the supreme court addressed the commissioner's other argument that the source code is "not discoverable." Id. at 712. The commissioner argued that it did not have possession, ownership, or control over the source code and that it did not have an adequate remedy at law. Id. The supreme court noted that the record was not sufficient to determine the federal copyright issues raised by the commissioner and that the commissioner failed to demonstrate a lack of legal remedy. Id. at 713.
Ultimately, the supreme court affirmed the denial of the writ of prohibition, determining that the commissioner failed to show that circumstances justifying the issuance of a writ of prohibition were present. Id.
District Court Rulings - What Is The Standard? Who Has Burden?
Defense attorneys have brought motions seeking orders for the production of the source code in hundreds of implied consent and criminal proceedings. The drivers' attorneys and government attorneys have a significant difference of opinion regarding the standard for production of the source code.
Government's Position:
The government typically argues that a driver is not entitled to the source code as (1) the state does not have custody, possession and control of the source code, (2) the driver cannot demonstrate a "need" for the materials and (3) due process does not require production. Even if discovery is ordered, the state typically requests a protective order to ensure CMI's interests are protected.
Although a very small number of attorneys have signed CMI's proposed order, CMI has yet to produce the source code.
Driver's Position:
In criminal cases defense attorneys are arguing that "Criminal defendants have a broad right to discovery and to prepare and present their defense." Many note that the rules of criminal procedure provide for discovery of "all matters within the prosecuting attorney's possession or control which relate to the case," and specifically any evidence "that tends to negate or reduce the guilt of the accused."
Most defendants counter the state's position by claiming the software is relevant, is within the state's control, the evidence sought is not available by any other means, and due process requires production of the materials.
These issues will not be resolved soon. Only two criminal cases are currently pending before the court of appeals and with no civil implied consent cases on appeal.
THE LATEST...
Some attorneys have signed the agreement proposed by CMI and have also paid for a copy of what is purported to be a paper copy of "the source code." A representative of the Minnesota Attorney General, represented in a telephone conversation in an October, 2007 telephone conversation that CMI intends to disclose "the source code," but must reverse engineer the machine language to obtain the code, and it would be ready in a matter of days.
The Minnesota AG's office had made representations of imminent disclosure before that conversation and continues to claim that CMI will disclose the material "tomorrow" or "by the end of the day."
CMI has disclosed nothing, despite a few Minnesota attorneys' ill-advised actions, i.e., signing non-disclosure agreement, paying for a paper copy of what is purported to be "the source code."
The Minnesota Society of Criminal Justice (MSCJ) is attempting to coordinate the efforts and resources of the attorneys involved in this litigation. Many attorneys who do not regularly practice in this area a jumping on the bandwagon and setting bad precedent.
My concern is unsuspecting Minnesota attorneys will find themselves in the position of the proverbial dog who actually catches the car. Without the teamwork, expertise and effort displayed by the courageous New Jersey lawyers in Chun, I am concerned a Minnesota lawyer may obtain something less than the full source code.
If the attorney were to hire an "expert" to perform a cursory review and find nothing of value, CMI would tout this as a victory and try to leverage the lack of findings to prevent not only further disclosure in Minnesota, but may also use the precedent to shut down full disclosure in other states as well.
On March 3, 2008 the Minnesota Attorney General filed suit against CMI to enforce the contract seeking the source code. Two young bright attorneys from the gambling & implied consent section of the office are litigating the matter. CMI has requested an extension to serve an Answer to the Complaint. The AG granted the request. I have yet to see the answer.
And Just Recently ... A Kentucky Court ordered CMI to turn over the source code to a defendant in Kentucky. The court noted that the software was relevant and production would not be unduly burdensom; the source code could be copied to cd-rom disk for less than a buck! See Kentucky Lawyer's, Stephen J. Isaacs Blog.
AND:
See more from the Minnesota Lawyer Blog (Minnesota Lawyer newspaper):
CMI, the manufacturer of the Intoxilyzer 5000 EN, the breath test machine used in Minnesota, lost an appeal in Florida. It had appealed a lower court order which imposes more than $3,0000 per day for refusing to turn over the source code. The fines have totaled well into the hundreds of thousands of dollars.
If CMI refuses to disclose the source code in the name of lost potential profits, why does it continue today now that it is losing more money in fines and lost future business than it likely would if a competitor stole the software?
Could it be worried what we defense attorneys may discover in the event we were to obtain the information?
Although I have no specific information, it leads one to believe that their actions are motivated by self preservation; fearing perhaps potential personal civil liability, punitive damages or maybe even criminal charges.
I don't know, but why else would this corporation continue down this path of self-destruction?
Whatever the reason, I doubt its lost profits. That time has come and gone.
-- Charles A. Ramsay Attorney at Law Charles@RamsayResults.com
Charles A. Ramsay & Assoc., PLLC 450 Rosedale Towers, 1700 West Highway 36 Roseville, MN 55113 o: 651.604.0000 f: 651.604.0027 c: 651.336.6603
The Intoxilyzer 5000 EN is the breath test machine currently used in Minnesota. More than 35,000 of such tests are run on Minnesota drivers every year. We DWI/DUI defense lawyers have discovered that every aspect of the machine is controlled by the software, often referred to as the source code.
The manufacturer, CMI of Kentucky, refuses to turn the software over to lawyers who seek it. Although our efforts to acquire the source code has been stymied by the Minnesota Attorney General (AG), the Commissioner of Public Safety, the Minnesota Bureau of Criminal Apprehension (BCA) and every prosecutor in the state, the AG has finally sued CMI.
Why does Senator Foley want to prevent drivers from presenting this in court? Does he know something we don't? What is he afraid of?
This bill, should it become law, would prevent the source code from being admitted not only at a DWI or DUI civil or criminal hearing, but it also would prevent it from being used to prove those at the BCA and CMI from civil or criminal liability.
There is growing evidence that some may be at least grossly negligent for permitting this bug-infested software to hurt Minnesota drivers and those around the country.
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Read the above quote from the Minnesota Court of Appeals. Ignore, for the moment, that the Court incorrectly describes both the 
One common indicia of alcohol consumption is “odor of alcohol.” Nearly every DWI police report will start with a mention of this odor, usually as soon as the officer gets within five feet of an alleged drunk driver. And it won’t just be an “odor.” It will be further defined by the officer, usually as a “moderate” odor, sometimes a “strong” odor, and on special occasions as an “overwhelming” odor. Sounds like damning evidence, right? It is, unless (like us) you know exactly how to fight in DUI cases..jpg)
Whenever drivers are arrested for DWI, the police will write a report that describes the reasons why, in their opinion, the driver was impaired by alcohol. Nearly every officer will describe an “odor of alcohol” alongside other observations like “bloodshot, watery eyes” and “slurred speech.” Judges, prosecutors, and even some defense attorneys will incorrectly describe these observations as “indicia of intoxication,” implying that each of these confirms that someone is drunk. This could not be further from the truth.
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Shoot First – Ask Questions Later
Currently, the .jpg)
Judge Abrams explicitly found that the Intoxilyzer cannot properly determine a deficient sample - and therefore does not support a charge of test refusal. In the order, it appears that the door has been left open for the government to bolster this faulty test result with “other evidence” that the test subject “refused” to provide a valid sample. However, the actual state of the law in Minnesota says the opposite - under Minnesota law, only a breath test machine that determines a deficient sample, not the officer..jpg)
Last month, Judge Abrams issued his 
In court, the arresting officer will usually say that the driver was trying to “fool the machine” by blowing around the straw, blocking the straw with their tongue, or not actually blowing any air. This may be true in some cases, but in our experience, its more likely that the driver WAS trying to give a sample - and the machine still rejected it, for reasons unknown. .jpg)
Once the groundwork had been laid, we pulled together a truly impressive coalition of defense attorneys to help foot the enormous costs that go into a detailed review of an embedded system like the Intoxiliyzer. And now, finally, after years of preparation and litigation, the evidence we’ve been demanding for years has been presented in open court, and we’ve reached the calm before the storm. .jpg)
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Chuck Ramsay's Breath Test Machine: Intoxilyzer 5000, Manufactured by CMI, Inc.
