Intoxilyzer Source Code Victory: Judge Rules Machine Cannot Reliably Determine Deficient Samples.

Posted On April 19, 2011 by Charles Ramsay

Minnesota continues to use Intoxilyzer 5000 Despite Hundreds of Defective Breath Cases Annually.

Last month, Judge Abrams issued his consolidated Intoxilyzer source code order. In a case directly affecting more than 4,000 Minnesota DWIs â?? and thousands more indirectly â?? the court decided that the Intoxilyzer, while suffering from many defects, is not so flawed as to prevent the test results from being admitted into evidence in most cases. In other words, the test results are "close enough for government work,| but drivers' attorneys are still free to present evidence attacking the results (even this conclusion is currently under appeal).

Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating that, |In cases in which the Intoxilyzer 5000EN â?¦ reported a â??Deficient Sample,' the Source Code of the instrument does impact the reliability, solely, of this result. Evidence in such cases of a â??Deficient Sample' test report should not be allowed â?¦.|

In the order's Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.

There is one limited situation, as discussed earlier, in which the labeling of a sample as |deficient| arises from multiple causes. At least one of these causes is a consequence of the Source Code's instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.

Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA's own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!

And |deficient samples| are almost always worse than outright failing the breath test. Under Minnesota law, it is a crime to refuse to submit to DWI alcohol testing. The statutes define test refusal as when a machine determines a driver has given a |deficient sample|. We have previously analyzed the crime of DWI test refusal, explaining how it is treated much more harshly than having an alcohol concentration of .08 or more.

We've been striving for years to bring these issues into the public spotlight. Now, with Judge Abrams' order, we finally have the evidence we need to successfully debunk the myth that every driver who provided a |deficient sample| was somehow at fault.

Of course, now that we've unmasked these fatal errors in the source code, the State will stop using the Intoxilyzer . . . right? If only life were that simple: stay tuned for tomorrow's blog, explaining just how long the State has known about these errors, and why they plan to keep on using the broken Intoxilyzer, regardless of its known flaws.

Then be sure to check back on Thursday, when we will discuss exactly why Judge Abrams' order should results in the dismissal of almost any case where a "deficient sample" was reported.