By Shannon Fiecke, Shawn Hogendorf and Keighla Schmidt

Last of four-part series

No one knows exactly how many local suspected drunken drivers
may have gotten to keep their license or had a criminal charge thrown out because of a legal battle over the DWI (driving while intoxicated) testing instrument, but it’s safe to say hundreds of south metro cases have been impacted.

With the state unwilling, or unable, to meet defendants’ demands
for the computer code that controls state’s Intoxilyzer 5000EN machine, many police switched to more costly and time-consuming blood and urine tests to avoid court fights. But some past DWI cases that relied on breath test results are still unresolved.

Although a tentative settlement was reached last month in the
state’s lawsuit to obtain access to the source code from the machine’s manufacturer, CMI Inc., the issue is far from over.

District Court judges, who’ve ruled every which way on the
matter and have tried making sense of appellate court decisions that seem somewhat contradictory, await further direction from the state’s highest court.

“All of us judges, we’re operating by the seat of our pants here,” said Scott County District Court Judge William Macklin. “We’re hoping the Supreme Court will come up with a conclusion to this whole thing.”

Judges in the 1st Judicial District have been all over the board on the question of whether defendants have a right to the source code and under what circumstances, flip-flopping on the issue amid Minnesota Appeals Court rulings.

Macklin, chief judge of the judicial district, which includes Scott, Carver, Dakota, Goodhue, Le Sueur, McLeod and Sibley counties, said he’s seen no distinct pattern in how judges have handled cases.

The matter is complicated, because it involves both civil law —
regarding the revocation of driver licenses — and criminal law, in which drunken driving can carry penalties such as fines and jail time.

The issue got started in 2006 with a license revocation case in
the courtroom of Dakota County Judge Richard Spicer, who granted a suspected drunken driver’s request for the source code.

While some judges allowed access to the source code in both
criminal and civil cases — or neither — others granted it only in civil cases, believing rules for evidence discovery is wider than in criminal litigation.

“What lawyers have been trying to do ever since I opened the
door is to try to take my civil ruling and apply it to the criminal cases,” said Spicer, whose hallmark decision in the Dakota County civil case was upheld by the state Supreme Court. “That’s why you have all these problems now.”

Eagan defense attorney Jeff Sheridan counters that access to the
source code is even more important in criminal cases because defendants’ liberties are at stake there.

“There is simply a greater right to discoverability on the criminal side — and any judge that’s held otherwise is incorrect,” said Sheridan, who set off the source code debate in Minnesota with his request before Judge Spicer.

At first, higher courts appeared to be affirming source-code
orders, leading District Courts in one direction.

When the state appealed the landmark ruling in the civil case,
arguing the source code wasn’t discoverable because the state commissioner of public safety didn’t have it, the Minnesota Supreme Court ruled the state had the right to such information under in its contract with CMI.

The Intoxilyzer is presumed trustworthy under state administrative
rules. However, the Supreme Court disputed the state’s assertion that the reliability wasn’t challengeable in District Court and could only be questioned in a direct challenge to the state rule in the Minnesota Appeals Court.

Prosecutors were more successful in their appeal of District
Court orders for the source code in two criminal cases.

A different Minnesota Appeals Court panel reversed district court orders on the criminal side, arguing that defendants in a consolidated case hadn’t adequately demonstrated why the source code was necessary to challenge the Intoxilyzer’s reliability.

Granting the source code without a stronger showing of its
necessity could lead the defense to mount “speculative challenges on other aspects of the design and manufacture of Intoxilyzers,” the appellate court ruled.

Carver County prosecutor Peter Ivy agrees. He believes the defense should have to show specific facts as to why the source code is relevant, instead of being able to issue a blanket request to review it.

Otherwise, “you’re only limited by your imagination” in what evidence can be requested, he said.

An attorney could argue the breath testing machine’s mouthpiece was defective or a bottle of Listerine might have been broken on the floor in the room where the test was given.

“Where does it stop?” Ivy said.

Cases dismissed

Until the latest appellate court ruling, which came in May, all judges in Carver County were said to be granting source code requests. While there was only one instance of a request being granted in a Scott County criminal case, there were judges like Macklin granting them in license-revocation cases.

At one point, it wasn’t unusual for Macklin to hear 15 license cases in one day in Scott County, numbers unheard of before defense attorneys began pressing for the source code.

Although Carver County law enforcement officers are still using
blood and urine tests, preventing future source code challenges, Scott County departments have switched back to breath tests.

In Carver County, defense attorneys haven’t requested the source
code for a while, Ivy said.

Source-code requests have dried up in Scott County as well, judges said recently.

Despite the lull, many past cases remain on hold, awaiting a Supreme Court ruling and developments in the state’s lawsuit against the Intoxilyzer’s manufacturer.

“I bet there’s a gigantic backlog [across the state],” said Spicer. “We’re talking thousands of cases awaiting a decision from the Supreme Court.”

In Carver County alone, Ivy suspects around 20 DWI cases have been dismissed, with probably about 15 cases on hold until the Supreme Court makes a ruling.

Before the July appellate ruling, most judges in Dakota County were ordering prosecutors to produce the source code. Dakota County Attorney Jim Backstrom said more than 20 cases are held up because of this.

Even if DWI charges are dismissed because of the unavailability of the source code, prosecutors still can pursue the charge of drinking while impaired, Ivy said.

Although a more subjective charge to prosecute, it doesn’t require an Intoxilyzer result, but can show impairment by a suspect’s driving behavior and performance in field-sobriety tests.

Unlike the DWI cases, which are prosecuted by local governments, attorneys for the Minnesota Department of Public Safety handle license revocation challenges.

Across the state, defense attorneys made hundreds of motions
requesting the source code in these civil cases, department spokesman Doug Neville said.

Neville said 61 judges in 23 counties have ordered production of
the source code in implied consent cases. Approximately 150 revocations have been rescinded or dismissed when the source code couldn’t be produced.

Although drivers don’t typically challenge license revocations,
doing so is important, because revocations can enhance future DWI charges and affect driving records — even if criminal charges are ultimately dismissed.

“The state really gets two bites of the apple,” explained Carver County Judge Philip Kanning. “[Someone] could theoretically be acquitted on the criminal charge [where the burden of proof is higher], and yet the petitioner, if they fail to convince a judge that the revocation was improper, can still lose their license.”

Oral arguments

In oral arguments before the Minnesota Supreme Court on Oct. 13,
criminal attorneys and a prosecutor gave their best arguments for why the source code is or isn’t relevant.

Derek Patrin, a defense attorney, reminded justices of a New
Jersey study that showed significant problems with a similar breath-testing machine’s source code, which affected the accuracy and reliability of that machine.

“I certainly would have loved to provide the source code analysis for the Intoxilyzer 5000EN,” he said. “But the manufacturer has not
allowed anyone access to [the source code].”

Assistant Dakota County Attorney Helen Brosnahan argued the New Jersey example is irrelevant because that machine is a different instrument than Minnesota’s and was never thoroughly tested in New Jersey like the machine here.

She said the Minnesota Department of Public Safety conducted an
authenticity study before the Intoxilyzer became used statewide.

“We have determined in Minnesota this instrument is accurate and
reliable,” she said.

Sheridan, arguing for the defense, pointed out the state performed evaluations for previous breath-testing machines used in the state — all of which were purported to produce “infallible results — “but through the course of time, scientific inquiry and the crucible of cross-examination, those instruments have disappeared off the market.”

The current model is on its fourth version of computer software,
he said.

“If this instrument is infallible and is not subject to ongoing
challenge, then why are we on the fourth version after three previous had already been rejected?” he asked. “Why is this a secret? We are using this instrument to put our citizens in prison and take away their driving privileges.”

A justice asked Brosnahan why the scientific method shouldn’t
apply to the source code.

Brosnahan responded that the source code is proprietary and
isn’t needed to conduct an external test on the instrument. She said the machine has been “tested over and over again” and Sheridan has had the machine for two years now and not done reliability testing.

Brosnahan borrowed an analogy she heard from an Anoka County judge, comparing the situation to a Honeywell thermostat showing the same temperature as a mercury thermometer.

“Then do I need a source code to tell me how the chip inside the
programmable thermostat figured out how to make it 68 degrees in my house?” she said.

Settlement

Although the source-code issue has been on appeal to the Supreme
Court, some assumed the matter settled when the state announced a tentative agreement last month with the Intoxilyzer’s manufacturer, granting access to the source code.

“By settling this
lawsuit, we accomplish our goal of gaining access to the source code while also helping Minnesota law enforcement agencies continue their efforts to decrease DWIs,” Minnesota Public Safety Commissioner Michael Campion said in a press release.

But attorneys say the settlement ignores judges’ orders that the
source code be handed over and it fails to provide the source code in a usable format.

“This is just a fancier way of saying no,” Sheridan said.

The agreement leaves essential legal questions unresolved, Ivy
said. Furthermore, he doesn’t think judges will be satisfied with the type of access provided, an impossible arrangement for poor defendants represented by public defenders.

The proposal provides for the examination of the source code in written and electronic form at the company’s headquarters in Kentucky. The
information can’t be shared.

A federal judge still must approve the proposed settlement,
which could be amended based on feedback from defense attorneys.

Chaska defense attorney
Richard Swanson, who considers the tentative settlement a positive step, wants it amended so the Minnesota Society of Criminal Justice can send representatives to examine the code and then share findings among member attorneys.

Sheridan said the electronic form the source code is to be provided in is just a scanned-in version of the written computer code and therefore can’t readily be tested by a computer expert.

Neville said the state worked with the company to develop a settlement that makes the source code available while also protecting the company’s intellectual property.

“It at least makes the
source code available to defense attorneys. It’s going to be up to them, whether they want to go to the company and view it,” he said. “It’s been a long-drawn out process. Is it ideal for everybody? I don’t know.”

The state attorney general filed the proposed settlement on Tuesday. A hearing has been scheduled for Dec. 12, Neville said.

As the legal community awaits further news on the lawsuit, it expects discovery guidelines to come soon from the state Supreme Court, which has taken the matter on expedited review.

“Who knows what the Supreme Court might decide,” Carver County Judge Philip Kanning said.

This is the fourth in a four-part series, “DWI: the Battle
Beyond the Courts.”