Judge says Intoxilyzer settlement falls short

Posted On February 11, 2009 by Charles Ramsay

Access to 'source code' remains at issue

In a victory for attorneys who handle drunken-driving cases, a federal judge has rejected a settlement in the state's lawsuit against the maker of the Intoxilyzer breath-testing machine widely used by police in Minnesota.

The proposed settlement had several provisions that posed legal problems, with no way to tell whether a key issue â?? how best to give defense lawyers access to the machine's computer "source code" â?? had been adequately resolved, U.S. District Judge Donovan W. Frank wrote in a ruling issued Monday.

Frank's order means lawyers for the state and the manufacturer, CMI of Kentucky Inc., have to decide whether to try to negotiate a new settlement agreement or take the case to trial.

"We're looking at what the options are," said Tim O'Malley, superintendent of the Minnesota Bureau of Criminal Apprehension. "Clearly, we'd like to be able to resolve this with CMI, but if we need to proceed with the lawsuit, maybe we would."

A lawyer for CMI did not return a call for comment.

But Marsh Halberg, a lawyer representing the Minnesota Society for Criminal Justice, one of the groups that had objected to the proposed settlement, said he hopes the two sides will put more thought into a new agreement than they did the last one.

The case involves questions about the accuracy of the Intoxilyzer 5000EN, the standard device used by law enforcement in Minnesota to determine if a driver is impaired. The state bought 260 of the devices from CMI in 1997.

Minnesota law presumes Intoxilyzer results to be reliable. But lawyers representing people accused of driving while impaired have long challenged that assumption and have sought access to the machine's source code.

The code is the computer program the machine uses to analyze a person's breath sample for its blood-alcohol content. While some state judges have ruled that defendants don't have a right to examine the code, others have ruled that defendants can have access under the Sixth Amendment's guarantee that a person can confront his accuser â?? even if the accuser is a machine.

Lawyers sued the state for access to the code, only to be told the state didn't have it. The state said that only CMI had a copy of the source code and that the company considered it a trade secret and refused to turn it over.

The state then sued CMI in federal court for access to the code. The two sides reached a settlement last year, but before the court could approve the deal, lawyers' groups complained about the terms.

In particular, they complained that while the settlement seemed to allow them to examine the source code, the restrictions placed on those examinations made the plan unworkable. For example, a defense expert witness would be able to view the code only at CMI's headquarters in Owensboro, Ky., in electronic form or by reading a 1,100-page printout.

They would have access to the code only during normal business hours and wouldn't be allowed to copy or take the printout from a secure room.

"That was a great concern to us," Halberg said of the restrictions. "They thought there'd be a hard volume, but that would be of virtually no value. On the electronic format, there was a dispute among the experts how easily or how viable it would be, or what searchability that format would allow for."

In his ruling, Frank said there wasn't enough evidence before him to conclude whether the proposed settlement's terms for access were fair.

"In particular, the court cannot conclude that the parties' proposed mechanism for permitting access to the source code serves the public interest and made the source code 'readily and reasonably available,' " Frank wrote.

The judge also said he had problems with the requirement that the source code could be viewed only in Kentucky.

"(T)he court cannot approve a settlement that would require Minnesota litigants, some undoubtedly eligible for public defender services, to travel to Kentucky to obtain discovery regarding the source code," the judge wrote.

He said he also wasn't sold on the settlement's provision that a federal court would have a continued role in overseeing access. He said it was "unnecessarily cumbersome and injects the federal court into an area most likely best overseen by state courts."

The BCA's O'Malley said that he hoped the lawyers would reach an agreement the judge would approve but that his faith in the accuracy of the Intoxilyzer was unshaken.

"We stand behind the Intoxilyzer," he said. "We continue to encourage law enforcement to use it, and we continue to take the position that the source code is not relevant to the accuracy of the Intoxilyzer itself. ... We've tested this. It is accurate. It is reliable."

By David Hanners