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Minnesota DWI Intoxilyzer 5000 Source Code Litigation Overview with Update

Posted by attorney Matthew Martin

Minnesota criminal defense lawyers, on behalf of their clients, are motioning the court to grant them access to the Intoxilyzer source code. These motions began as far back as 2006 and continue today. These motions are based on the idea that if a breath test result is to be used as evidence, then a defendant should be afforded the opportunity to challenge the validity of such evidence. In order to test the validity on this evidence, defense experts must be allowed access to the source code in order to assess the accuracy and reliability of the code. Source code refers to the computer programming language that instructs the machine (i.e., Intoxilyzer 5000EN) how to interpret the physical data it receives when someone blows into the device.

In response to these motions, Minnesota judges began ordering the release of the source code to the defendants. However, subsequent attempts to obtain the code and questions of who had the code, triggered a federal lawsuit to compel CMI, the codes’ author and manufacturer of the Intoxilyzer 5000EN, to turn over or make available the code to defense experts. In July 2009, a settlement was approved that provided a process for defendants to obtain the source code.

Pursuant to the federal settlement, defense attorneys began the long process of analyzing the source code for the Intoxilyzer 5000EN. Despite numerous delays and improper information, defense experts continue to analyze the code.

As a result, many law enforcement agencies rely heavily upon blood and urine tests over that of the breath test. In turn, the number of blood and urine test submitted to the Minnesota Bureau of Criminal Apprehension (BCA) laboratory for testing has likely doubled or tripled.

UPDATE - New DWI Intoxilyzer in Minnesota?

The Minnesota Bureau of Criminal Apprehension (BCA) announced Monday, August 2, 2010 that a new vendor will be supplying Minnesota law enforcement agencies with new breath testing equipment.

National Patent Analytical Systems of Mansfield, Ohio will be providing Minnesota the NEW Datamaster DMT breath-testing machine, replacing CMI’s Intoxilyzer 5000EN.

As previously discussed, Minnesota criminal defense lawyers have been seeking the source code of CMI’s Intoxilyzer 5000EN since 2006. The basis of that litigation stems from a question of accuracy and reliability of the evidence produced by the equipment (i.e., test results of a defendant’s blood alcohol concentrate or BAC). Currently, more than 3,000 DWI cases await defense expert’s analysis of the source code which will likely be used to argue against the validity of the machine. A massive consolidated calendar is set for this fall in Scott County in front of Honorable Jerome Abrams.

Minnesota law enforcement agencies plan to start testing the new Datamaster DMT machines shortly as well as preparing their nearly 4,000 representatives to begin using them this fall. They anticipate a more streamlined approach to governance, maintenance, and data sharing. In turn, Minnesota DWI criminal defendant’s can likely anticipate a more streamline revocation of their individual driving privileges.

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