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

The state has been in panic mode since last week's Minnesota Supreme Court DWI Intoxilyzer Source Code Ruling.

State Source Code Litigation

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.

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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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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.

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                                             Drivers enter DWI Breath Test Battle

    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...

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