Minnesota DWI Breath Test Source Code Update: State & Federal Developments

Posted on May 7, 2009 by Chuck Ramsay

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.

Federal Intoxilyzer Source Litigation

Over our objection, CMI and the AG reached a tentative settlement yesterday, May 6. The parties are meeting on Monday, May 11, 2009 to iron out the details. Here is the framework for the state’s and CMI’s settlement (again, OPPOSED by Plaintiffs-Interveners).

  • Same format as their settlement last fall, with some changes
  •  The same (worthless) hard-copy version of what CMI claims to be the source code (actually a reverse engineered version of the machine language) and text searchable pdf will be made available somewhere in the state for review, under yet undetermined conditions;
  • CMI claims it will provide the full source code with compilers, makes files, etc., ONLY at their building and under its direct supervision. Represents any review of the source code would “necessarily” have to be a “partnership”.
  • Defense expert may bring own computer equipment, but w/o remote internet access capability, and hard drive must be left at CMI after review is completed.
  • Defense expert’s report and other materials cannot be shared with other cases, even with same expert and same defense attorney.
  • Plaintiffs-Interveners: Opposed
  •  Review should be at our expert’s lab
  • Expert’s Report of source code defects should be public (or at least made available to defense attorneys and their experts). Otherwise it would be cost prohibitive.

Next Step

On Monday, May 11, the three sides are meeting again with the federal magistrate to finalize the details.  Judge Frank said he is inclined to rule against the state, in favor of CMI, on the copyright/IP issues (well of course, the AG has conceded it).

I believe any final settlement should be rejected for two glaring deficiencies:

1) The IP issues – the state owns the source code; and,
2) the lack of independent review; the settlement would again deny reasonable access to defense experts.

Check back here to see how this rapidly changing progresses....
Tags: , , , , ,

Judge says Intoxilyzer settlement falls short

Posted on February 11, 2009 by Chuck Ramsay

Access to 'source code' remains at issue

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."

By David Hanners

dhanners@pioneerpress.com

Tags: , , , ,

Arizona Contemplating Dismissal of Thousands of DUI Cases

Posted on January 7, 2009 by Chuck Ramsay

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.

Tags: , , , , ,

WCCO News Story: Faulty DWI-DUI Breath Test Destroys Innocent Drivers' Lives

Posted on November 2, 2008 by Chuck Ramsay

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.

 

Tags: , , , , ,

Prosecutor Dismisses All DWI-DUI Charges

Posted on October 15, 2008 by Chuck Ramsay

A prosecutor in Hennepin, County Minnesota dismissed yesterday all charges against a man who had been charged with gross-misdemeanor criminal charges.  The man's attorney, Charles Ramsay of Roseville, Minnesota, confirmed the dismissals. 

Ramsay had challenged the drunk driving charges based on a number of constitutional violations, including, that the police coerced his client to take the Intoxilyzer 5000 under the implied consent law.  "The police told my client to 'consent' to a breath test or go to jail.  That violates the fourth and fifth amendments of the US Constitution."

The maximum penalty carried one year in jail and a $3,000 fine.

If you've been charged with a DWI or DUI in Minnesota, call Charles Ramsay to defend you.  Don't wait.  You risk losing valuable rights if you wait 30 days after your arrest.

Tags: , , , ,

Attorney General Obstructs Independent Breath Test Examination

Posted on October 9, 2008 by Chuck Ramsay

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>>>

The AG filed suit not to obtain the source code, but to keep it from us. 

The AG/CMI agreement does not require CMI to produce THE source code.  Instead, CMI will produce only a decompiled version of the machine language.   CMI will present the coding in "hard copy" -- a couple thousand pages bounded.  The agreement calls for an "electronic" version.  Unfortunately, according to a footnote, this does not require the source code to be produced in its usable "electronic" format capable of executing computer coded "routines."  Rather, it is only the hard copy which has been scanned into optical character recognition (OCR) software -- nothing more than a basic word processor to search in plain text.

The text documents will be stripped of key components, e.g., the programmers' comments.  Without the comments, it would be like navigating a strange city using a street map without listing street names, a legend and other navigational aids.  In short:  Worthless.
 
Also, because the document is not the source code or software of any sort, it cannot "run" the machine.  Experts would not be able analyze its performance of even basic routines or functions, or verify it is what CMI says it is. 
 
Any Inspection Under the Agreement Would be Cost Prohibitive

Finally, although the AG claims to have secured this document for "free", the terms of the agreement make review cost prohibitive.  Experts could not analyze the source code using methods commonly used in the industry for such purposes.  For example, although our experts would conduct some analysis manually, they would be precluded from utilizing analytical software that runs w/o supervision.  (Even with this software running 24 hours on several machines, it would take several weeks to analyze the source code here.)
 
Here the AG/CMI stipulation limits us not only to the medium to be analyzed (hard copy of decompiled, machine language and a searchable text version), but precludes use of any analytical devices other than a CMI provided computer.  Evaluations are limited to a secure room within CMI's building and only during regular working hours.  Even if a manual analysis were possible, it would take an army of experts years to complete.  One can only begin to imagine the cost to house, feed and compensate them for their services.
 
It is also cost prohibitive in most cases as the AG/CMI stipulated agreement precludes us from pooling financial and other resources, or sharing the results of an expert review from a case in any other matter other than that single case.

Defense Lawyers' Attempts to Ensure Justice

Many defense attorneys knew when the AG suddenly changed its tune and seemingly turned against its long-term ally, that the AG would not act in Minnesotan's best interests, reported Minnesota Lawyer in March.  Defense attorneys' suspicions have become reality.  Its clear the AG sued CMI not to obtain the source code, but to keep it from us.

In June, the Minnesota Society for Criminal Justice (MSCJ) -- an elite group of 50 attorneys dedicated to fighting for the rights of Minnesotan's -- sponsored member Charles Ramsay's motion to intervene in the federal lawsuit. 

As reported by Minnesota Lawyer, the MSCJ filed the motion in June in an attempt to keep the AG and Commissioner honest.  "We fear the AG will get the software, but will only be able to turn it over under conditions that preclude a meaningful opportunity to examine it." 

The Practical Effect of the Federal Settlement -- Drivers Denied Ability to Inspect Breath Test Software

Despite the potential "permanent injunction" to which the state and CMI consented, the parties cannot legally enjoin citizens from vindicating their right to independent review of the software. Practically speaking, however, judges who take the state's position at face value may be inclined to follow the AG's agreement with CMI. As a result Minnesotans are worse off now than before the the AG filed suit. Open, independent analysis of the breath tests' software is the only way to ensure justice is done.
Tags: , , , ,