Defense bar weighs impact of Intoxilyzer suit brought by state
by Barbara L. Jones
Some mull seeking to intervene.
The arguments made by the state in its recently announced lawsuit against the maker of the Intoxilyzer 5000 EN had a familiar ring to many local defense attorneys.
Defense lawyers have been arguing for more than a year that they need the device’s source code in order to be able to gauge the machine’s reliability. Until recently, the state resisted those requests, arguing the source code was irrelevant and, in any case, was not in the state’s possession.
But a couple of weeks ago the state did an abrupt about face, filing a federal lawsuit against Kentucky-based CMI, the maker of the breath-test device, for damages and the source code. While the state says it still has faith in the reliability of the test, CMI’s refusal to provide the source code “has placed the outcome of numerous impaired driving-related cases in jeopardy, has forced the State to incur substantial expenses, and may force the State to replace its entire existing fleet of evidentiary breath-testing instruments.”
Judges in more than 100 Minnesota cases have reportedly found that defendants have the right to examine the code, but CMI has nonetheless refused to provide it, arguing it is proprietary.
While defense lawyers are glad to have the state as their new-found ally in their frustrating and so far fruitless quest to get access to the code, they may not be prepared to let the state make their arguments for them. Defense lawyers are considering intervening in the state’s lawsuit so they can make their arguments themselves.
One of the source code cases has already been up to the state Supreme Court.
The Minnesota Supreme Court affirmed. The commissioner acknowledged that the state owns some portion of the code, and that it wasn’t clear that the commissioner was unable to comply with the court order, the court reasoned.
CMI still generally refuses to disclose the source code. Last fall, CMI started offering to produce the code subject to a highly restrictive 10-page protective order, but the proposed order is so restrictive that most judges won’t sign it, the state’s complaint says.
Results vary from court to court, but many DUI cases have been dismissed or reduced because of the source code battle.
Because of the source code issue, many law enforcement agencies have ceased to use the Intoxilyzer, switching to the more expensive blood or urine tests, putting a strain on the Bureau of Criminal Apprehension’s budget.
The state’s complaint sounds in breach of contract, copyright infringement and breach of the implied covenant of good faith and fair dealing.
“By virtue of Defendant CMI’s bad faith refusal to turn over the source code, the State has been subjected to allegations of bad faith not only by litigants but by district court judges throughout Minnesota,” the state’s complaint says. “As a result, Defendant CMI has created a situation in which the State’s breath testing program, once broadly regarded as presumptively reliable, has become viewed as presumptively unreliable by many litigants and judges throughout the State.”
A good strategy?
The state’s lawsuit leaves defense lawyers with an important question: What happens in DUI cases involving breath-test results while the civil case wends its way through federal court?
The state made clear in a recent case that it doesn’t plan to veer from its argument that it cannot turn over the source code because it doesn’t have it, said Roseville lawyer Charles Ramsay.
St. Louis Park attorney Jeffrey Ring wondered if judges would still be willing to impose the consequences of refusing to turn over the source code on to the state when the state is doing what it can to get it. If the federal lawsuit convinces judges that the state is blameless, the judges may be reluctant to sanction the state, he said.
“Going to federal court is no small thing. I believe the state is acting in good faith. On the other hand, it is a good strategy,” said Ring.
Chaska attorney Richard Swanson said that he has been successful in getting attorney fee awards from the state in source code motions, and thinks the case may be an effort to stave off future awards. “It’s a ploy by the Attorney General’s Office because if they didn’t sue, there’d be a basis to find them in bad faith,” Swanson said.
Swanson said that he plans to move for reconsideration of any order where a judge has found that the state doesn’t have possession of the source code. He also plans to proceed with jury trials in cases where the source code has been ordered. (Some court clerks are becoming concerned about the backlog of DUI cases that is building up because of the source code dispute, he added.)
Intervention in contention
Some defense lawyers are considering either intervening in the state’s lawsuit as a group or finding a client to intervene.
“We want to make sure [the state] plays fair,” Ramsay said. “We want to make sure they’re not just trying to delay, although there’s no reason to believe that’s actually happening.”
It’s hard to believe the Attorney General’s Office is acting solely in the interest of the citizens, he stated. “If that were the case, they would have [sued this out] a long time ago.”
There’s another advantage to intervening, said Ramsay. “Imagine what we could obtain through discovery.”
But other lawyers say they don’t have the time or the inclination to get involved in the lawsuit.
“I don’t want to be involved in any lawsuit. The state has to produce the source code,” Swanson said.
Representatives of the Department of Public Safety and the Attorney General’s Office could not be reached for comment.
