Prosecutors win another round in source code battle
by Michelle Lore Staff Writer
BCA Forensic scientist Karin Kierzek demonstrates the Intoxilyzer 5000 EN. (Photo by Bill Klotz) |
Chalk up another win for the state in the ongoing battle over the discovery of the Intoxilyzer’s source code in DWI prosecutions.
In a published decision issued last week, the Minnesota Court of Appeals ruled that a Dakota County District Court judge committed an abuse of discretion by granting two criminal defendants’ motions for production of the code.
The court determined that a defendant must demonstrate that an examination of the Intoxilyzer 5000EN’s software would show defects in its operation or at least would be necessary to determine whether defects exist. In the consolidated cases before it, State v. Underdahl and State v. Brunner, the court found that the defendants had not made such a showing and thus failed to show how the code relates to their guilt or innocence.
“[The defendants] have not shown what an Intoxilyzer ‘source code’ is, how it bears on the operation of the Intoxilyzer, or what precise role it has in regulating the accuracy of the machine,” wrote retired Judge Gary Crippen. “Accordingly, there is no showing as to what possible deficiencies could be found in a source code, how significant any deficiencies might be to the accuracy of the machine’s results, or that testing of the machine, which defendants are permitted to do, would not reveal potential inaccuracies without access to the source code.”
Dakota County Attorney James Backstrom, whose office prosecuted the cases, told Minnesota Lawyer that he’s pleased the court has rejected “blanket discovery challenges” to the source code.
“The decision confirms what we’ve been saying — that there is no legal basis for defense attorneys demanding production of the source code,” he said. “This is a complete victory from our perspective.”
“It’s still far from over,” said Minneapolis attorney Derek Patrin, who represents defendant Timothy Brunner. “It doesn’t definitively end anything. It’s just another twist and turn in the process.”
Eagan attorney Jeffrey Sheridan, who represents defendant Dale Underdahl, stressed that the court did not issue a bright-line ruling that the source code isn’t discoverable. Instead, he explained, the ruling means that the parties to a DWI prosecution will now be forced to go through lengthy evidentiary hearings on the subject.
“[The decision] just makes it far more cumbersome … and expensive for everybody,” said Sheridan.
Ongoing battle
Prosecutors and criminal defense attorneys have been arguing over the source code for almost two years. Defense lawyers contend they need the code in order to be able to gauge the Intoxilyzer’s reliability. Prosecutors counter that the machine has been proven reliable and its source code is irrelevant.
In conjunction with Underdahl’s implied consent hearing in 2006, Dakota County District Court Judge Richard Spicer ordered the Commissioner of Public Safety to sell Sheridan an Intoxilyzer and disclose the code. Sheridan bought the machine, but procuring the source code has proven to be a challenge due to the contention by the manufacturer, CMI, Inc., that the source code is proprietary.
The commissioner petitioned the Minnesota Court of Appeals for a writ or prohibition to prevent enforcement of the Dakota County order, arguing that the court exceeded its jurisdictional authority by ordering production of information that is not discoverable. The commissioner also argued that he could not turn over the source code because the state did not own or possess it.
In Underdahl v. Commissioner of Public Safety (Underdahl I), the Court of Appeals rejected the arguments and declined to issue the writ. In July 2007, the Supreme Court affirmed the decision.
Since that time, CMI has began offering some DWI attorneys the chance to obtain the source code, but placed restrictions on it, including a heavy cost and a requirement that the lawyer sign a lengthy confidentiality order.
In March, the Minnesota Attorney General’s office filed a federal lawsuit against CMI, seeking monetary damages and an order requiring the company to provide the state with a copy of the source code. That suit is pending.
Varying treatment
As a result of the ongoing controversy, some judges around the state began dismissing DWI prosecutions, some rejected motions for the code and some held off on making a decision on the issue.
Prosecutors contend that Underdahl, which comes on the heels of a similar unpublished decision last month, State v. Olcott, will provide much-needed guidance to trial judges.
Stearns County Attorney Janelle Kendall told Minnesota Lawyer that the debate over the relevance of the source code has caused major problems, especially for the larger counties, but that this decision will allow judges who had put the cases on hold to begin processing them again.
“The Court of Appeals recognized the number of cases being held up here,” she said. “This allows us to move ahead.”
Backstrom added that Underdahl requires defendants to produce an expert opinion identifying what it is about the source code that will determine in what way the Intoxilyzer is not reliable.
“Frankly, there is no basis to challenge it … because this machine is reliable,” he stressed.
Defense attorneys recognize the recent decisions mean they need to make an even greater showing of relevance, although they are unclear as to exactly what that is at this point. Indeed, in Underdahl, the Court of Appeals specifically noted that “[w]e have no occasion on these records to attempt defining what showing would be necessary to justify requiring disclosure of the Intoxilyzer source code.”
Patrin is nonplussed. “What’s troubling is that they seem to be pulling the carrot just out of our reach,” he told Minnesota Lawyer last week. “Just tell me what I’ve got to provide and I’ll do it.”
Patrin added that he’s disappointed the court did not address his submission of an expert analysis of the source code from a breath-testing machine used in New Jersey. It’s not the same machine, but it does show what types of errors can be found in source codes, he said.
According to Sheridan, the trial judge in Underdahl, like many other judges around the state, appreciated the relevance of the source code to the criminal case, but the appellate court did not credit the judge with understanding it. Instead, the court said defendants still need to show more — even to a judge who already gets it, he said.
Sheridan added that the decision is particularly puzzling in light of the Minnesota Supreme Court’s opinion in Underdahl I that it was not an abuse of discretion to order discovery of the source code. He noted that the showing of relevance made in that case is identical to the showing made in the criminal case.
The Supreme Court — in a civil case involving one’s driving privileges — said that the defendant was entitled to this discovery, Sheridan said. Yet, in a case involving one’s personal liberties, the Court of Appeals is saying that it was an abuse of discretion to order it, he added.
