Start Me Up!
Lately, we’ve had a string of successes for our clients, getting license revocations thrown out of court (winning a case each week, and posting some of our results here). But last week we earned a particularly satisfying victory, when a judge granted our motion throw out our client’s breath test result and rescinded (overturned) his license revocation. What makes this particularly noteworthy is that this is our first complete victory challenging the software that controls every aspect of Minnesota’s current breath test machine – the DataMaster (“DMT”). It also marks the first time over a decade where a Minnesota judge threw out a DMT test result based on this issue.
It’s our first recent victory in our fight for transparency against the government’s breath testing program, but we’re already gaining momentum. In two other cases this week, two other judges granted our motion and ordered the state to provide the source code of the breath test machine. If the state continues to work against us, rather than working to provide the source code, then we’ll ask that the breath test results be thrown out in those case as well.
We first challenged the software that runs Minnesota’s breath test machines over a decade ago, with the predecessor to Minnesota’s current breath test machine – the Intoxilyzer 5000. Back then, a colleague and I attended a pro-prosecution science course at the University of Indiana – The Robert F. Borkenstein Course on Alcohol. One of the instructors said it would be a good idea to evaluate the source code of breath test instruments to ensure that these machines do what the manufacturers claim they do.
So we did.
Gathering a collection of other defense attorneys we were lead counsel of the “source code coalition” which fought CMI (the Intoxilyzer manufacturer) and the State of Minnesota (prosecutors in criminal cases and the attorney general civil drivers’ license cases) in federal court to obtain the software, as part of our challenges to the validity and reliability of Minnesota’s breath tests. As more and more judges (and ultimately the Supreme Court) agreed that Minnesotans were entitled to have independent experts review this software, and as the State continued to fight tooth-and-nail to keep this evidence hidden, judges started throwing out breath test results.
The State kept fighting us, turning to blood and urine tests to avoid using their breath test machines. The resulting backlog – a direct result of the State’s decision to fight us instead of help us – put a tremendous amount of stress on lawyers, judges, courts, and their staffs, as DWI cases continued to pile up on dockets.
In the end, we got the source code and were able to review it. As we suspected, review of the source code led to us being able to prove that the Intoxilyzer 5000 source code was broken. The machine’s software had a flaw that would erroneously report the driver had submitted insufficient samples of air, meaning those drivers could be punished for “test refusal” instead of whether they passed or failed the test . . . .and test refusal can be far more serious than test failure (not to mention cases where the driver was not even over the legal limit of 0.08, but still charged with refusal!)
What blew our minds is that during the source code litigation we discovered that one Minnesota Bureau of Criminal Apprehension technician admitted that they were aware of this flaw in the software, and even had a software patch to correct the problem. Bur rather than install the patch and fix the issue, they were told by the Office of the Attorney General not to correct the problem, lest they draw more attention to drivers’ claims that the software was broken!
Because the state and the breath test machine’s manufacturer fought disclosure of the source code, litigation dragged on for seven years and cost the state unknown sums. The Source Code Coalition, itself spent nearly $500,000 on experts, alone.
LESSONS LEARNED (OR NOT . . .)
In 2010 the state purchased 260 new DataMaster DMT breath test machines, replacing the old Intoxilyzer 5000 instruments and parting ways with that particularly litigious manufacturer. In order to make sure it would be easy to comply with future orders compelling the State to provide this new software to defense experts, this time the State of Minnesota specifically required any contract with a breath test vendor included provisions which required the vendor to supply the software.
This “Request for Proposal” process is how the government contracts for equipment, and this RFP made it clear that anyone interested in providing breath test instruments to Minnesota would need to be willing and able to provide copies of the machine’s software for independent review. Several alcohol breath test manufactures were interested, but the state ultimately selected a small company in Mansfield Ohio, National Patent Analytical Systems (NPAS), as its next provider. The contract between NPAS and Minnesota for the new fleet of DataMaster DMTs went to great lengths to avoid the same source code fight sparked by the Intoxilyzer 5000, a victory for transparency in governance and also a surprising example of government agencies learning from previous mistakes. This contract answered several questions upfront, including:
- What are the rights and responsibilities of the parties upon a judge ordering disclosure of the machine’s source code?
- May the manufacturer claim the source code is a “trade secret” and refusing to disclose the information?
- What if the manufacture sold the ownership rights to the DMT?
- What happens after the contract expires?
- In the event of a dispute, what state’s laws apply? And do we really have to make another federal case out of it?
All of these issues – and more — were addressed in the 2010 contract with NPAS.
So why are we convincing judges to throw breath test results out of court due to the State’s failure to disclose this crucial software? Because, perhaps not so surprisingly, the State of Minnesota went from learning from their mistakes to reversing course and doubling-down on previous errors, as though they want to recreate the same problems that plagued Minnesota’s breath testing program a decade ago.
This is going to turn into a blog series, as there's just too much information to share in one post. Next up:
- THE 2010 Contract with NPAS;
- Source Code, Round II: What We’ve Been Up To…
- The Orders.
- Your Questions, Answered.