The Minnesota Supreme Court last  Thursday upheld a lower court's decision to require production of the source code used by breath testing machines. This "source code" is the computer software which converts a small sample of breath into a calculation of the estimate of blood alcohol content in the person's system. When Dale Lee Underdahl and Timothy Arlen Brunner were both charged with DUI in separate cases in 2006 and 2007, they sought access to the source code for the Intoxilyzer 5000EN. Virginia recently replaced the last of the Intoxilyzer 5000 models with a different machine.

State officials in Minnesota resisted the defendants' requests, claiming the software controlling the device was not relevant and, in any case, it was private information under the sole control of the machine's manufacturer, CMI Inc. CMI claimed the information was a "trade secret" and refused a district court order to produce the code. This led to the prospect that the charges against Underdahl and Brunner would be dismissed for lack of evidence, so before this could happen, the state asked the court of appeals to strike down both discovery requests. The appeals court agreed with the state.

The majority of the MN Supreme Court, however, turned down Underdahl's request simply because he failed to make a sufficient argument in the court's eyes to establish the relevance of the breath testing machine's underlying software. To require disclosure, the court ruled that the defense must make an argument to establish relevance. Because Brunner submitted nine exhibits to bolster his claim, the high court ruled that the district court court judge had the discretion to mandate its disclosure. Brunner offered evidence of faulty source code procedures uncovered in New Jersey and problems with voting booths using similar technology. Both of the DUI court cases can now move forward.

Click the link to read the full Minnesota Supreme Court Source Code Ruling.
Bob Battle
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100% of my practice is devoted to serious traffic defense and criminal litigation in state and federal courts
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