MINNESOTA BCA AWARE OF FATAL FLAWS IN BREATH TEST MACHINE SOFTWARE
Attorney General Obstructs Lab's Effort to Correct Defective Software.
Private Attorney to Intercede in Federal Law Suit against Manufacturer on behalf of Drivers.
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As early as mid-2006 the Minnesota Bureau of Criminal Apprehension (BCA) knew its 200+ breath test machines malfunction. Minnesota's Intoxilyzer 5000 displays a driver's alcohol result on its LED readout; yet sporadically records a test result higher than displayed. The state discovered this and other fatal defects after hastily installing the current Intoxilyzer software in 2005.
The BCA, the state agency responsible for oversight of Minnesota's breath testing program, complained to the manufacturer of several "oddities" occurring only in the new software. Attorney Charles A. Ramsay exposed a September 2006 email documenting several critical machine malfunctions.
The test also erroneously rejects drivers' attempts to provide a breath sample by elevating the minimum volume requirements to a nearly impossible amount. As a result the driver is charged with the much more severe crime of Test Refusal, which carries a punishment far more severe than driving over the legal limit of .08.
The state continues to permit the bug-riddled software to operate its more than 200 breath test machines. More than 35,000 drivers were given breath tests according to the BCA's 2006 annual report.
Minnesota Attorney General Stifles Software Fix
Until now the fatal flaws were kept secret among the BCA, CMI and the Office of the Minnesota Attorney General (AG). Typically the BCA would have immediately corrected the software. However, the fatal software defects were discovered after several defense attorneys had begun aggressively seeking access to the software from the courts. Fearing an escalation in the so-called "source code challenge," the attorney general's office advised the BCA to wait until the challenge had lost momentum, according to a BCA employee.
The AG fought defense attorneys in court, siding with CMI which - despite court orders from numerous other states, including its own state appellate court - has refused to permit open independent expert analysis of the software. As the source code battle dragged on, a growing number of trial judges were dismissing drunk driving cases at an alarming rate.
In response to judges' complaints, the state filed suit against CMI in federal court in March, 2008. The law suit has reduced the number of dismissals and changed the momentum in the source code battle.
"Smoking Gun" Discovered
Criminal Defense Attorney Charles Ramsay announced today that he discovered proof of the Intoxilyzer's broken software. A 1996 email from the BCA to CMI exposed what he calls a "smoking gun" which evidences the need for independent review of the Intoxilyzer's software.
According to the email, BCA tests conducted using different versions of the Intoxilyzer software yielded inconsistent results.
"The acceptance of samples blown into the instrument is dependent on which version of software the instrument is running. ... We performed a variety of tests under different conditions using each version and the results were not the same."
Not only do test results differ depending on the version of the software, but also may differ on the same test.
"[O]n occasion the volume and alcohol that were last seen on the display are not the same as when printed out" writes the BCA to CMI.
The BCA employee sent the email to five CMI representatives and four other BCA employees.
"These black boxes not only deprive citizens of their right to drive, but it puts innocent people in jail. The Minnesota Attorney General, our state's chief prosecutor, chose to protect the interests of a secretive, foreign company rather than fight for the constitutional rights of Minnesota citizens. Most alarming, is that the AG encouraged the cover-up of a fatally flawed breath machine that the public, police and court believe to be 100% accurate. "
Ramsay filed a motion to intervene in the federal lawsuit the AG filed against CMI, a Kentucky corporation. "Its clear the AG will not protect the rights of Minnesotans in that law suit. I'm intervening to ensure justice prevails. Otherwise, the AG will use this case for appearances only, to our detriment."
Charles Ramsay is criminal defense attorney in Roseville, Minnesota. He is current before the Minnesota Supreme Court arguing to the constitutionality of Minnesota's "Implied Consent" law.
