Minnesota DWI Defense Blog : Roseville DUI Defense Lawyer & Attorney : Ramsay Law Firm : Minneapolis, St. Paul, Minnesota

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.

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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.

 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.

As I’ve said before, they’ll never do it!

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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.

                                 Guilty by Secret Black Box = Guilty by “Star Chamber”

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.

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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)
 

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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.

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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>>>

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