Minnesota's New Breath Test Machine: More Source Code Challenges?

Posted On August 05, 2010 by Charles Ramsay

Yesterday a reader posted the following question on our blog:

Allen L. - August 4, 2010 5:04 PM

If the State replaces the Intoxilyzer 5000 with the Datamaster, doesn't this start everything all over again? Requesting the source code. Why doesn't the State just eliminate the breath test machines altogether and strickly go with blood tests?

Attorney Dan Koewler responds:

Scientifically, it would make perfect sense to discard breath testing altogether, and rely strictly on blood sample testing. Breath testing has numerous problems completely independent of possible software errors. That being said, there is no way that the State would discard such an "easy| test method just because of a few measly scientific concerns. Remember, the State measures its success rate by how many convictions it can rack up, and it wants those convictions as fast as possible.

Additionally, National Patent (the manufacturer of the Datamaster) is a drastically different creature than CMI (the manufacturer of the Intoxilyzer). Datamaster has a track record of actually working with defense attorneys, rather than stonewalling them. In fact, we already know that their source code is available â?? for about $250, they'll put the code on a disk and send it directly to us. Compare that attitude with CMI, where it took four years of litigation and hundreds of thousands of dollars just to get a chance for our experts review some of the source code, in a remote location, under some pretty ridiculous terms.

Given National Patent's history of being rather transparent, there likely won't be much to gain by a protracted source code challenge. The real challenges will remain with how the State chooses to implement the Datamaster; our State has spent years pretending that its breath test machines were flawless, with the full support of CMI. With National Patent, I expect the State will have to find better explanations for its failure to have a regular maintenance schedule for its machines, among numerous other scientific safeguards that have been ignored with the use of the Intoxilyzer.

We're defense attorneys â?? its we do, and what we love. I know that there will be numerous challenges to the Datamaster's integrity, but at this point, I'm just not sure that source code challenges will be one of them.