Judge Orders Disclosure of Breath Test Source Code; Thousands of DWI Tests Could be Thrown Out

Posted On December 02, 2008 by Charles Ramsay

The Honorable Jack S. Nordby, a District Court Judge in Hennepin County, Minnesota, has ruled that disclosure of the Intoxilyzer source code was "not only relevant to this litigation (and to virtually any dispute involving Intoxilyzer evidence), but very likely indispensible [sic] to a proper hearing of such a case.|

In his order in the case of Minnesota v. Gadow (27-CR-08-46085, a full copy of which is below), the Court states that there is |good reason to believe these source codes will reveal defects in the Intoxilyzer device's operations of a significance that makes the evidence exculpatory and constitutionally subject to mandated disclosure by the prosecution.| The Court also notes that even though the significant amount of evidence leads to the conclusion that there is a high likelihood that Source Code review would uncover previously hidden errors in the results of DWI tests, a much lower standard should be applied in a discovery motion. |No such showing,| the Court reasoned |need be made to support a simple discovery request as that under consideration here.|

The Court also commented that, when designing the Minnesota Model of the Intoxilyzer 5000, the State chose not to include an option that would preserve a driver's breath sample. As a result of this choice by the State, a driver's breath sample is discarded immediately after the machine finishes its secretive analysis, making further testing impossible. According to the Court, the State's decision to opt out of the preservation feature on the Minnesota Model |results in routine destruction of potentially exculpatory evidence.|

Because of the design of the breathalyzer, the nature of computer construction and operation, and the destruction of a driver's breath sample, |the potential for errors is enormous,| according to the Court, |the number of possible defects astronomical â?? literally in the millions or billions| and |[m]any, if not most, if not all of these are virtually immune from detection unless the source codes can be examined.

Continuing in its analysis about the mysteries of CMI's black box, the Court noted that the courts have delegated their gate-keeping function of determining if the machine is functioning the way it is supposed to be to the machine itself. As a result, police officers testifying that machine is working properly only believe that because the machine said it was working properly. Such a delegation, according to the Court, constitutes an |abdicat[ion of] our non-delegable judicial duties, demeaning the separation of powers.|

The Court also noted that the breath testing landscape in Minnesota presents a situation |where juries and judges are asked to accept the word (virtually the verdict) of a machine that a person is guilty of a crime [â?¦] without being allowed to know how the machine reached its decision, or whether it did so reliably.| With the machine not being subject to cross-examination and destroying the breath sample provided by the driver, a serious question must be considered as to whether it results in a denial of a driver's constitutional rights to confront their accusers and present a full and effective defense.

Concluding its analysis, the Court notes that what was before it was a simple discovery motion, |a simple and reasonable request by the defense to examine the fact-maker and surrogate fact-finder.| The Court held that not only are drivers entitled to Source Code review, but goes on to say that |defense [attorneys] would arguably be guilty of ineffectively assisting a client for not demanding the information.|

A PDF version of Judge Nordby's order is available here, and the full text is included below.

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