From Thursday's print edition

By Shannon Fiecke, Staff Writer 

The fate of likely thousands of drunken-driving defendants now rests in the hands of one Scott County judge.

With court challenges to the state’s breath-testing machine languishing across the state, Minnesota Chief Justice Eric Magnuson has asked District Court Judge Jerome Abrams to address the key concern in the cases — whether the software that controls the Intoxilyzer 5000EN is problematic.  

The Intoxilyzer is the machine used to test the blood-alcohol content of suspected drunken drivers in Minnesota. Since defense attorneys began challenging the reliability of the machine in 2006, counties like Scott have switched to blood and urine testing, which had been reserved for only the most serious offenses.

Courts across the state have wrestled with whether defendants have a right to see the “source code,” the computer code that controls the Intoxilyzer. Many cases have been put on hold or thrown out when manufacturer CMI refused to turn the source code over to the state.

The legal community breathed a huge sigh of relief last April when the Minnesota Supreme Court brought clarity to the debate, ruling that a drunken-driving defendant has a right to examine the source code if he or she can show why it’s relevant.

But the issue is far from over.

It is now up to Judge Abrams to decide if analyses by defense experts produce anything valid enough to damage the credibility of the Intoxilyzer.

Abrams was already overseeing more than 560 consolidated criminal and civil cases in the seven-county 1st Judicial District. His hand will now extend to nearly all license revocation cases (717 and counting) in Minnesota, as well as all criminal prosecutions where attorneys agree to the consolidation.

Just getting started

Thirteen attorneys assembled last week in a hearing before Abrams on pending cases in the 1st District, believed to have the largest share of source code challenges.

In Scott County alone, 123 DWI (driving while intoxicated) cases are on hold. Some 1st District defendants have awaited a conclusion since 2006.

A federal judge ruled the state has a right to the source code from manufacturer CMI, but defense attorneys and CMI haven’t been able to agree on how the source code will be provided and whether the defense has a right to related information about the machine.

One computer expert has begun analyzing the source code at the manufacturer’s Kentucky headquarters, but defense attorneys say further information is needed for a thorough analysis.

The source code can be viewed on paper form or in electronic form at the CMI headquarters, but sections of the code can’t be copied for testing.

Attorney Derek Patrin, who won the landmark 2009 Minnesota Supreme Court case, is the first to send an expert to Kentucky.

While the expert found “some good stuff,” he can’t go further without additional information — such as access to the machine’s schematics and source code revision history, Patrin said.

The schematics, an engineering drawing of the circuit boards in the machine, are necessary to understand how the software and hardware interact, the attorney said.

It’s like trying to put a jigsaw puzzle together without being able to see the picture on the box, Patrin explained. 

CMI has refused to allow the defense expert to manipulate the source code for testing on the CMI computer. Neither will it allow the defense to copy the code for testing on its own laptop.

Defense attorney Charles Ramsay has demanded full, unfettered access of the software on disc so experts can review it at their labs. 

Machine problems

Defense attorneys say they’ve seen many test results from the Intoxilyzer 5000 that were irregular or contained unexplainable anomalies.

They’ve discovered that the machine might record a hard puff as a "test refusal," which can carry greater civil and criminal penalties than failing the test entirely.

The source code is “poorly written” and archaic, Patrin said.

His expert has already discovered flaws in the computer software. 

One key finding: The machine continues to function and spit out results, even when an important heating element is unplugged from the back of the machine.

This heating element prevents condensation from building up (which could leave the presence of alcohol from another driver in the breathing tube). The element also includes a device that prevents radio frequency interference, Patrin said.

Ramsay previously released a copy of what he calls the "smoking gun," an e-mail from a state toxicologist to the Intoxilyzer 5000 manufacturer.

The e-mail indicates the Intoxilyzer "on occasion" printed out different blood-alcohol readings than what was displayed on its screen, and the amount of air required to be blown varies depending upon the version of computer software installed.

Waiting game

As Scott County awaited court rulings on whether defendants had a right to the source code and if the state settlement with CMI granting access to the code would past muster, law enforcement officers have gone back and forth in how they test suspect drunken drivers.

Since June, Scott County Attorney Pat Ciliberto has recommended officers not use the Intoxilyzer and instead utilize the costlier and more time-consuming blood and urine tests, lest cases be tied up or thrown out.

Minnesota Assistant Attorney General Kristi Nielsen estimates up to two-thirds of the state may still be using the Intoxilyzer, however.

As she told Judge Abrams, one officer said when it’s 2 a.m., he’s going to administer the Intoxilyzer rather than be hung up at the hospital waiting for blood work while a partner may need backup.  

Much is riding on what defense experts discover.

If the Intoxilyzer software is successfully challenged, it could lead all counties to halt use of the machine altogether.

The state could lose at least 717 license-revocation cases if the Intoxilyer results are found inadmissible.

Criminal charges couldn’t be so easily dismissed, but it would be more difficult for prosecutors to prove impairment without results from the breath machine.

Machine reliability

Members of the Source Code Coalition have asked CMI for documentation and information regarding prior problems with the machine and its software.

The state has never analyzed the source code, despite the software needing at least six revisions since the Intoxilyzer machines were purchased more than 20 years ago, defense attorneys allege.    

Coalition attorneys want to know what changes have been made to the machine and source code to remedy these problems, including updates that have not yet been implemented.

This information would expedite the time needed to review the source code, making the process less expensive and allowing for a “truly complete and thorough source code review,” the coalition said in a letter to U.S. District Court Judge Donovan Frank.

Others believe coalition attorneys are simply dragging the matter out.  

No one from the coalition has visited CMI headquarters, despite the electronic source code being available for inspection there since July.

CMI questions whether the issue is even about source code anymore, CMI attorney William McNab told Abrams. “Remarkably, the coalition claims that its consultants have spent several months and $150,000 not doing Source Code review, but that not starting the review while demanding ever more information will somehow expedite the process,” McNab wrote to Judge Frank. 

Patrin admits the latest requests from defense attorneys looks circumspect.

In hindsight, attorneys should have asked for more than just the source code from the start — but now because of computer experts they realize the importance of other information to understanding the computer software, Patrin said.

Ramsay told Judge Abrams experts can’t conduct a thorough examination without seven remaining items listed in a request to Judge Frank.

Abrams said he is “disappointed” in the delays, and he can’t to get at the heart of the issue until the data requests are resolved.

The issue of the source code is of statewide importance, he said, and “hundreds and hundreds of days” were lost in court because of hearing continuances.

 “I don’t know what their experts will come up with,” Abrams said. “I’ve got a hugely open mind about all of this stuff. I don’t know where it will go.”

Shannon Fiecke can be reached at (952) 345-6679 or sfiecke@swpub.com.