DWI and DUI; Source Code Defense, Minnesota Supreme Court Rules

What is a Source Code?

In simple terms, the source code is the computerized language that operates a device. It provides the device with a set of commands on how to analyze data and even when to turn "on" or turn "off." Source codes are used to operate your computer, your microwave, or your cell phone. They are also used to operate devices used in DWI cases to determine blood alcohol content.

What is the issue?

As anyone who has used a computer knows, coding errors can occur. Source codes are not infallible. They are subject to human error, mechanical failures and even malicious coding. Treating them as infallible in court when it comes to testing blood alcohol in the breath, violates due process of a defendant when that defendant is unable to seek independent testing of the code used.

The Legal Issue?

In 2006, defendant's in a DWI case in Florida sought the computerized source code for the breath testing device used in DWI offenses, a version of the Intoxilyzer 5000. The source code, it was argued, was necessary for testing to determine if proper programming was included in the device so that it was accurately assessing blood alcohol concentrations.

The issue with the request that occurred was that the manufacturer of the Intoxilyzer device, CMI, Inc., of Kentucky, considered its source code a trade secret and, as a result, refused to release it to the state to be turned over as discovery to the defendant. Ultimately, the Florida Court refused to require the state to provide the defendant, Todd Moe, the source code.

Similar challenges began to spring up in many states. In Minnesota, two Dakota county cases raised the issue. In those cases, State v. Underdahl, and State v. Brunner, the lower trial courts ruled that the source code was discoverable and had to be turned over to the defense. When the company, CMI, Inc., refused to part with its source code, the breath test results were suppressed. The cases were appealed, finally making their way to the Minnesota Supreme Court for review.

On April 30, 2009, the Minnesota Supreme Court issued its ruling on the two combined cases.

It decided that computer source code for the intoxilyzer 5000 machine is within the control of the state and that it must be turned over to defense counsel when the defense makes a showing that the under the Minnesota Criminal Rules of Procedure Rule 9.01, subd. 1, provided, however, a showing is made that the information may relate to the guilt or innocence of the defendant or negate guilt or reduce the culpability of the defendant as to the offense charged.

The end result is that the Minnesota opinion provides defense attorneys a template by which they may seek the source code in cases where computerized analysis of breath samples occurs. It does require, however, that the defense, provide a reasonable basis as to why the code is relevant to the guilt of innocence of the individual in more than general terms. In most instances expert testimony related to the nature of the source code and how errors may occur would be necessary coupled with any indicia that errors have occurred historically. Ultimately, if CMI, Inc. continues in its refusal to provide the source code to the state, challenges to the admissibility of breath test results in DWI cases will continue to increase and provide defense attorney's a much needed tool in combating the reliability of the Intoxilyzer 5000