Driver Loses Source Code Appeal; Attorney Fails to Make Minimal Showing
The Minnesota Court of Appeals rejected a driver's appeal to order the state to disclose the "source code" which operates the state's breath test machines. See State v. Olcott, (Minn. Ct. App., 4/15/2008).
In emphasizing the low standard on the driver to meet his burden, it noted the driver's attorney did nothing more than make a bald assertion that the source code is related to the case.
"We have no quarrel with Olcott's underlying propositions that an accused should be allowed to examine the evidence against him and, generally, he should be allowed to discover information that could lead to admissible evidence. But we fully agree with the district court that Olcott has offered only a 'bald assertion' and legal arguments in support of his discovery requests.
"We find nothing in the district court record that even marginally attempts to satisfy the rule 9 'showing' requirement. Olcott has not attempted to show what a 'source code' is; or how it fits into the operation of the Intoxilyzer; or what its precise role is in regulating the accuracy of the machine; or what possible deficiencies could be found in a source code; or how significant any deficiencies might be to the accuracy of the machine's result; or whether testing of the machine (which he is permitted to do) cannot reveal potential inaccuracies without also knowing the source code. Olcott seems to suggest that his request for the source code needs no technical explanation, that the thing speaks for itself, and that his mere assertion makes the need for the source code obvious. But this is the realm of a type of expertise beyond ordinary knowledge. Olcott implicitly concedes that fact when he argues that even the expert Intoxilyzer operators cannot testify to the method of producing the result. By presenting only argument on the discovery issue, Olcott left the district court, and this court, to speculate.
Because Olcott has made no 'showing' whatsoever of how the Intoxilyzer 5000EN source code relates to his guilt or innocence, negates his guilt, or reduces his culpability, we conclude that the district court did not abuse its discretion in denying Olcott's motion to compel production of the source code for the machine.
The Minnesota Court of Appeals has recognized the standard is very low. The burden is easily met merely be presenting documentation within the public domain. The manufacturer (CMI), and the state (Bureau of Criminal Apprehension (BCA)) agree the software operates the Intoxilyzer and every essential function.
For example, look at CMI's Intoxilyzer 5000 Brochure.
CMI notes the importance of the software:
"A multiprocessor system employing a microprocessor controls the general operation of the instrument from information display to printer operation, keyboard interface, and electro-mechanical functions. A separate microcontroller is used for optical signal processing which increases the system's signal handling.
"The microprocessor includes 56K EPROM (erasable programmable read only memory), 32K of battery-backed RAM and 8K of Scratch RAM (Random Access Memory). Additionally, the microcontroller has a separate 64K EPROM available and a separate 8K scratchpad RAM. Every aspect of operation, from displaying and printing of information to the basic electrical and mechanical functions, is micro-computer controlled.
Also click here to see the BCA's recent posting (Admitting "The source code is important because it determines what programming is loaded into the Intoxilyzer - basically, it tells the Intoxilyzer how to interpret the physical data it receives when someone blows into the device.").
Finally, look at Tennessee's Validity Studies where it calls the software "critical" to the evaluation of the product.
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Charles A. Ramsay
Attorney at Law
CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113