How The DWI Guys Got The Intoxilyzer 5000 Breath Test Machines Replaced In Minnesota
As seasoned DWI defense attorneys, we have seen many test results from the Intoxilyzer 5000 that were irregular or contained unexplainable anomalies. Other times, the actual reported results were much different than would be expected for the number of drinks consumed by our clients prior to driving.
While the machine may not be a completely unreliable instrument, our source code expert’s analysis leads us to believe that the machine is less scientifically reliable than a handheld preliminary breath test (PBT) used on the roadside by law enforcement. The results of PBT tests are inadmissible in court by statute because they are not deemed scientifically accurate or reliable enough to convict people. Our analysis may eventually lead the courts to the same conclusion about the Intoxilyzer 5000. The DWI Guys will continue to lead the way on the attack of these unreliable machines. Read further to learn about the complete history of the Intoxilyzer 5000 source code challenge in Minnesota.
The source code challenge is pending before the Minnesota Supreme Court. A small group of attorneys, including Derek Patrin, have devoted countless hours to this challenge on behalf of all drivers in Minnesota who were tested on the Intoxilyzer 5000. Despite this challenge, many police officers continue to use the machine on drivers arrested on suspicion of DWI. If you are one of these drivers, you should contact our office immediately. We may be able to file paperwork and get agreements from the court and the prosecutor that your case should be included in the appeal process. If you do not do this, you will lose the opportunity to benefit from the outcome of this appeal if it is favorable to drivers.
You may have heard of the “source code” issue in DWI defense, either on the news or online, but it’s hard to find an explanation that really lays out the whole story and what it means for DWI offenders. The DWI Guys at Meaney & Patrin have been frontrunners on the “source code” issue since 2007, and the landmark Minnesota Supreme Court decision of State of Minnesota v. Brunner was the final piece that turned the tide of this issue against the state in favor of individuals accused of drunk driving by a machine. Most recently, we have learned that the state has begun the process of replacing its entire fleet of Intoxilyzer 5000 breath test machines with new machines made by a rival manufacturer, Intoximeter Inc. Without the Brunner decision, none of these events would have happened and drivers would still be at the mercy of an unreliable breath testing machine that would be untested for programming errors.
In 2007, the Minnesota Supreme Court issued a ruling that upheld a lower court’s decision to grant a driver discovery of the computer software “source code” for the Intoxilyzer 5000 breath test machine. Similar moves had been made in other states that used the same breath testing machine, and some drivers (most notably in Florida) had gotten test records excluded from evidence because the machine’s manufacturer had refused to grant access to the machine’s software source code. Other drivers had been granted access to another breath test machine manufacturer’s software source code and were having it analyzed by software code experts for programming errors or other anomalies.
The “source code” of any software is the human-readable version of the software written by computer programmers when they develop and modify the software that runs any machine. When the Bureau of Criminal Apprehension approved the Intoxilyzer 5000 for use in Minnesota in the 1990s, the state never asked for or otherwise analyzed the software source code. Instead, it ran tests on the machine and compared the results with simultaneous blood and urine tests to see if the results were a close enough match. After determining that the correlation was strong enough, the machine was approved. The Minnesota Supreme Court’s decision in 2007 opened the floodgates for drivers in Minnesota to seek access to the source code to have it analyzed, much like drivers in other states had tried to do. Predictably, the manufacturer of the Intoxilyzer 5000, CMI Inc., refused to provide the source code, claiming it was a trade secret and that its release into the public would put the company out of business. CMI would not even agree to release the source code under a strict protective order from the court, which is often done in court litigation for sensitive corporate documents and trade secrets.
Meaney & Patrin began making requests for source code discovery in 2007 with all of our clients that submitted to the Intoxilyzer 5000 breath test machine. The following two years became an epic battle in every county across the state as judges all came up with their own reasons to either grant or deny discovery on various grounds. Many cases were dismissed, while many others came to favorable settlements for drivers that would otherwise not be possible. Still others remain unresolved to this day, waiting for CMI to grant access to the source code. In the midst of all the chaos in 2008, Minnesota actually sued CMI in federal court to force CMI to give the source code to the state for analysis by individual defendants. CMI resisted and spent hundreds of thousands of dollars fighting the lawsuit. The state’s chances of getting access to the source code this way looked bleak and the federal case moved along slowly.
Then, in April 2009, the Minnesota Supreme Court issued its landmark decision in State v. Brunner, which was handled by Derek Patrin of Meaney & Patrin. In that ruling, the Supreme Court held once and for all that all drivers should be allowed access to the source code as long as each driver presents enough information to show that the source code would be relevant to that driver’s defense. The information needed was easy to come by, so every driver started using that information to get orders from the lower courts granting access to the source code. More and more test results were being thrown out of court by lower court judges since CMI was still unwilling to give drivers access to the source code. Finally, after months of drivers getting amazing plea bargains on cases because of CMI’s stubbornness, CMI and the state settled their federal lawsuit and allowed drivers tightly secured access to the source code at CMI’s headquarters in Owensboro, Kentucky. Immediately after that, lower court judges all began granting access to the Intoxilyzer 5000 source code pursuant to the terms of that settlement.
Now that access had been won in the face of pressure stemming from the Brunner decision, drivers had to organize to actually hire experts to analyze the source code.
This would prove to be an expensive endeavor that no single driver could afford to pay alone. One large group of defense attorneys, organized by the Minnesota Society for Criminal Justice (MSCJ), formed a coalition that any defense attorney could join for a fee, and all the collective fees are being used to fund a team of experts to conduct a full analysis of the source code. However, Meaney & Patrin had enough clients with pending source code challenges to locate and hire their own expert to begin analyzing the source code sooner than the coalition.
Once again, the DWI Guys provided the big push to get the state to act. Derek Patrin personally traveled to CMI’s headquarters in Kentucky soon after access was granted and met with the company president and their attorneys on site. He was able to view the room where the source code files were being made available and lay down the logistics for his own expert to begin analysis.
Soon after, Timothy Black was retained by Meaney & Patrin’s clients to analyze the source code. Black traveled to Kentucky and reviewed the source code to establish a plan of action. After that, he went back home to his lab and waited for Derek to obtain an Intoxilyzer 5000 machine from the state for his research and analysis. Eventually, Derek was able to procure a machine and sent it to Black. Black spent the next few months running tests on the machine and finding flaws in its operation and its supposed self-test functions. He also revealed gross inaccuracies regarding the machine’s ability to accurately measure breath volume, which is a key part of the quality control for breath testing machines. Finally, Black was able to demonstrate that the machine lacked the ability to detect and account for radio frequency interference (RFI), despite a requirement from the state that these machines must be able to do so.
In December 2010, Black traveled to Minnesota and testified about his findings in a deposition and at the official evidentiary hearing in front of the Honorable Jerome Abrams of District Court. His testimony was well-received and he provided video demonstrations of some of his findings. The entire hearing spanned 11 grueling days of testimony from Black and other experts, plus employees of the breath testing unit of the Bureau of Criminal Apprehension. Both sides submitted their final arguments to Judge Abrams in January 2011.
In March 2011, Judge Abrams issued his 118-page order summarizing the process leading up to that point and deciding that the Intoxilyzer 5000 may still be used in court despite the findings of Black and other experts. Abrams ruled that the flaws discovered were not serious enough to render the machine’s results inadmissible. However, Abrams did also rule that drivers facing test refusal penalties based on the machine’s rejection of their sample could contest that finding in court.
The defense team got to work immediately on the appeal of the Abrams order, filing a request for discretionary review with the Court of Appeals. The request was granted and the state filed for accelerated review of the appeal by the Supreme Court, which would allow the appeal to bypass the Court of Appeals. The Supreme Court granted that request, which was not opposed by the defense. Both sides submitted briefs in support of their arguments and the oral argument was set for December 1, 2011. Derek Patrin argued the case in front of the Minnesota Supreme Court on behalf of all drivers in Minnesota. Then came the long wait for the Supreme Court’s decision. During this time, the state started replacing all Intoxilyzer 5000 machines with new Datamaster DMT machines.
Finally, on June 27, 2012, the Minnesota Supreme Court issued its ruling. In a 4-3 split, the court affirmed the lower court’s rulings and agreed that Intoxilyzer 5000 test results with final alcohol readings would be admissible in court despite the errors that were found by DWI Guys expert Timothy Black. Not only would these results be admissible, but the court agreed that the evidence we found regarding source code errors will NOT be admissible in court for a jury’s consideration. The three dissenting justices expressed concern that this ruling will seriously infringe upon drivers’ right to a fair trial because key evidence will be excluded from the jury. Needless to say, we strongly disagree with the majority opinion and share the concerns of the minority dissent. A petition for rehearing is being filed in the hopes of convincing one more justice that the majority opinion is incorrect and needs to be amended.
This litigation isn’t over yet. The DWI Guys will not give up until our clients have had the full opportunity to challenge this issue, no matter what the odds are.