Posted On April 30, 2009 by Charles Ramsay

Today the Minnesota Supreme Court ruled in favor of a driver who sought the breath test machine's software. The driver presented the trial court with documents explaining what the source code is, the issues surrounding the software, an example of a breath-test machine analysis and potential defects in the software.

In the case, State v. Brunner, the trial court had ordered the state to produce the source code in 30 days or the breath test result would be suppressed. The Minnesota Court of Appeals reversed the trial court. Today, the Minnesota Supreme Court reversed Minnesota Court of Appeals and upheld the trial court's original decision ordering the source code.

The Court also upheld the lower court's ruling that the state has possession or control of the source code. In fact, it cited to its previous ruling, Underdahl I.

Another case that was consolidated with Brunner, State v. Underdahl, suffered a different fate. The Court noted that Underdahl made zero showing of relevance. Justice Myers, writing for the majority wrote,

"We hold that, even under a lenient showing requirement, Underdahl failed to make a showing that the source code may relate to his guilt or innocence."


I believe this marks the end of the Intoxilyzer 5000 in Minnesota. Brunner's attorney submitted only nine documents to meet his burden to have the source code, two of which seemed to be sufficient: A document from Chun , a New Jersey breath-test case, and a paper written about voting machine source code. Now any competent attorney can make the requisite minimal showing.

I've spoken to a few prosecutors today. They are telling their police officers to stop using breath testing until further notice. Instead, the officers will use blood or urine testing.

This will continue until either

a) the state buys new breath testing equipment from another manufacturer or

b) CMI, the Intoxilyzer manufacturer turns over the software.

As I've said before, they'll never do it!