Minnesota Supreme Court Source Code Decision: First Impressions
We've had some time to review the recent 4-3 decision regarding the Intoxilyzer 5000EN, and have already received a lot of phone calls and emails regarding the impact this decision will have on both our clients' cases and the thousands of breath test DWI's that are pending throughout the State of Minnesota. While it's too soon to provide a detailed analysis, some obvious points jump out of this decision.
For reference, you can again find the decision here.
Judicial Activism: This decision shows a clear bent towards judicially rewriting a key component of our DWI laws. The four justice majority ignored the plain language of our test refusal statute in this decision, which will have a huge impact on wrongful convictions and inappropriate license revocations.
To explain - our law currently makes it a "refusal| for a driver to not comply with numerous scientific protocols - not providing 1.1 liters of air or not blowing at a rate of .15 liters per second, for example. If these conditions are not met, the test is deemed |deficient| and the driver is charged with refusal. Our legislature had strong, solid reasons for writing the law this way, and ensuring that the objective calculations of a machine, versus the subjective interpretations of a police officer, would determine who was and was not providing a valid breath sample.
However, when presented with unrebutted evidence that the BCA not only knew that the Intoxilyzer had a fatal flaw that incorrectly deemed samples as deficient, but also intentionally refused to implement a software patch that would correct the error, a majority of our Supreme Court chose to simply rewrite the refusal statute. Now, even though everyone knows that the Intoxilyzer has a huge software bug affecting so-called |deficient| samples, the Court opened the door to present the testimony of a police officer to explain that the driver simply wasn't blowing at a rate of .15 liters per second, or didn't actually provide a full 1.1 liters of air. Besides the pure absurdity of expecting anyone to be able to make those determinations, it is all but certain that every officer is going to testify in this manner in every case - rewriting our laws and covering up a known software error that has gone uncorrected for years.
Hiding the Ball: This decision also takes the troubling step of actively hiding known software errors from every jury in the state. Everyone has the Constitutional right to present a complete defense against the state, in order to prevent our system of justice from turning into a system of sham trials. However, in this case the majority held that evidence of errors with the Intoxilyzer, such as the effect that radio frequency interference has on test results, or the fact that the machine itself is only accurate within a 10% range of values, are all inadmissible. A jury, asked to determine if someone is guilty or innocent based upon a single printout, will never be allowed to hear this evidence before being asked to decide how much weight to give an Intoxilyzer test result.
Future Due Process Concerns: This narrow 4-3 decision creates the appearance that Intoxilyzer test results are now virtually unassailable in a court of law. That's not entirely true - there are still numerous defenses that can be raised against test results produced by this outdated and flawed machine. What's troubling about this decision is not just the impact it has on current Intoxilyzer cases . . . but what impact it will have on future cases. What will happen in the future if the State wants to hide even more evidence from a jury, or when the State needs to have our courts rewrite another statute to make it easier to convict. In those situations (and if the past is any indication, they will certainly arise) the State can simply point to this decision as support for the conclusion that hiding evidence and bypassing our legislature are the appropriate ways to uphold the constitution.