Intoxilyzers: Keeping faith in technology

Had the AGO not been successful in this litigation, hundreds if not thousands of DWI convictions could have been reversed and thousands more drivers could have been acquitted due to “confusion” by the jury during a “science trial.”


Generally speaking, a driver who is driving erratically may be stopped by law enforcement, and if the officer has a reasonable basis to believe the driver has been drinking, may offer the driver the choice of taking a breathalyzer test, a urine sample, or a blood draw. If the driver declines to take any test, the State will petition the court to suspend the driver’s license for a period of time. In the end, most drivers take one of the tests, usually the breathalyzer test. 


Most law enforcement agencies used the Intoxilyzer 5000EN to test the breath of the driver. For years, the results of the test were admissible in court as evidence. 


In the mid-2000s, however, a team of DWI lawyers commenced a multi-year challenge affecting thousands of DWI cases, challenging the reliability and accuracy of the result calculated by the Intoxilyzer equipment. The Intoxilyzer uses infrared absorption spectroscopy to measure the breath alcohol concentration of people who provide breath samples.  In 2006, a driver, Dale Underdahl, filed a motion seeking discovery of the complete computer source code for the Intoxilyzer, arguing that access to the source code was necessary to determine whether the code affected the reliability of the reported test result in his implied consent case. The Dakota County District Court issued an order granting Underdahl's discovery motion. The State petitioned the Minnesota Court of Appeals for a writ of prohibition to prevent enforcement of the order granting Underdahl's discovery motion. 


On appeal, the State argued that the source code is protected by copyright and that the manufacturer would not provide it to the State. The State argued that the source code was not discoverable because State does not possess the code. The State further argued that under federal copyright law, the State does not own the full source code and therefore cannot comply with the district court's order to produce the complete source code. Mr. Underdahl responded by arguing that the "complete computer source code for the operation of the [Intoxilyzer 5000EN]" is a work for hire pursuant to 17 U.S.C.A. § 101, and that, as such, the district court did not abuse its discretion when it issued its discovery order.


The Minnesota Court of Appeals denied the State’s petition for a writ of prohibition. In re Comm'r of Pub. Safety, No. A06-1000, Order at 2-3 (Minn.App. filed July 18, 2006). The State appealed the matter to the Minnesota Supreme Court, requesting a Writ of Prohibition be issued. The Supreme Court affirmed the Court of Appeals' denial of the Commissioner's petition. In re Comm'r of Pub. Safety, 735 N.W.2d 706, 713 (Minn.2007).  The State subsequently disclosed the Intoxilyzer 5000EN source code to Underdahl. Thereafter, every DWI lawyer made a request for the source code.  


Thereafter, the AGO filed a motion to the Minnesota Supreme Court to appoint one judge to adjudicate all challenges to the reliability of the Intoxilyzer source code. The AGO contended that assignment to a single judge would eliminate the risk of inconsistent rulings, provide a more efficient process and forum for adjudication of the source code challenges, and thereby preserve the resources of both the parties and the judiciary. 


On January 11, 2010, the Supreme Court assigned Judge Jerome Abrams to preside over all pretrial matters concerning challenges to the reliability of Intoxilyzer results. Judge Abrams held an evidentiary hearing beginning on December 8, 2010 and concluded on December 23, 2010. The evidentiary hearing became a battle of experts, with each side parading several experts who debated whether the Intoxilyzer could give erroneous readings due to radio frequency interference from cell phones, whether the self-tests used to calibrate the instrument were accurate, whether the volume of air measured was reliable, and whether the margin of error was too large. 


Judge Abrams issued an order that accepted the credibility of the Intoxilyzer. The DWI lawyers appealed, arguing that they should still be able to criticize the accuracy of the source code at the trial of each driver.  


On July 27, 2012, the Minnesota Supreme Court affirmed Judge Abram’s order and upheld the admissibility of the Intoxilyzer results, ending six years of litigation. 


In re Source Code Evidentiary hearings in Implied Consent Matters, 

816 N.W. 2d 525 (2012)

https://scholar.google.com/scholar_case?case=4686058476914196517&q=in+re+source+code+litigation&hl=en&as_sdt=4,201

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