How the DWI Guys Successfully Got the Intoxilyzer 5000 Breath Test Machines Replaced in Minnesota

You may have heard of the “source code” issue in DWI defense, either on the news or online, but it’s hard to find an explanation that really lays out the whole story and what it means for DWI offenders. The DWI Guys at Meaney & Patrin have been front-runners on the “source code” issue since 2007, and the landmark Minnesota Supreme Court decision of State of Minnesota v. Brunner was the final piece that turned the tide of this issue against the State in favor of individuals accused of drunk driving by a machine. Most recently, we have learned that the State has begun the process of replacing its entire fleet of Intoxilyzer 5000 breath test machines with new machines made by a rival manufacturer, Intoximeter, Inc. Without the Brunner decision, none of these recent events would have happened and drivers would still be at the mercy of an unreliable breath testing machine that would be untested for programming errors.

Back in 2007, the Minnesota Supreme Court issued a ruling that upheld a lower court’s decision to grant a driver discovery of the computer software “source code” for the Intoxilyzer 5000 breath test machine. Similar moves had been made in other states across the country that used the same breath testing machine, and some drivers (most notably in Florida) had successfully gotten test records excluded from evidence because the machine’s manufacturer had refused to grant access to the machine’s software source code. Other drivers had been granted access to another breath test machine manufacturer’s software source code and were having it analyzed by software code experts for programming errors or other anomalies.

The “source code” of any software is the human-readable version of the software written by computer programmers when they develop and modify the software that runs any machine. When the Bureau of Criminal Apprehension approved the Intoxilyzer 5000 for use in Minnesota in the 1990’s, the State never asked for or otherwise analyzed the software source code. Instead, the State ran tests on the machine and compared the results with simultaneous blood and urine tests to see if the results were a close enough match. After determining that the correlation was strong enough, the machine was approved. The Minnesota Supreme Court’s decision in 2007 opened the floodgates for drivers in Minnesota to seek access to the source code to have it analyzed, much like drivers in other states had tried to do. Predictably, the manufacturer of the Intoxilyzer 5000, CMI, Inc., refused to provide the source code, claiming it was a trade secret and that its release into the public would put their company out of business. CMI would not even agree to release the source code under a strict protective order from the court, which is often done in court litigation for sensitive corporate documents and trade secrets.

Meaney & Patrin began making requests for source code discovery in 2007 with all of our clients that submitted to the Intoxilyzer 5000 breath test machine. The following two years became an epic battle in every county across the state as judges all came up with their own reasons to either grant or deny discovery on various grounds. Many cases were completely dismissed, while many more others came to very favorable settlements for drivers that would otherwise not be possible. Still others remain unresolved to this day, waiting for CMI to grant access to the source code. In the midst of all the chaos in 2008, the State of Minnesota actually sued CMI in federal court to force CMI to give the source code to the State for analysis by individual defendants. CMI resisted and spent hundreds of thousands of dollars fighting the lawsuit. The State’s chances of getting access to the source code this way looked very bleak and the federal case moved along very slowly.

Then, in April 2009, the Minnesota Supreme Court issued its landmark decision in State v. Brunner, which was handled by Derek Patrin of Meaney & Patrin. In that ruling, the Supreme Court held once and for all that all drivers should be allowed access to the source code as long as each driver presents enough information to show that the source code would be relevant to that driver’s defense. The information needed was easy to come by, so every driver started using that information to get orders from the lower courts granting access to the source code. More and more test results were being thrown out of court by lower court judges since CMI was still unwilling to give drivers access to the source code. Finally, after months of drivers getting amazing plea bargains on cases because of CMI’s stubbornness, CMI and the State settled their federal lawsuit and allowed drivers very tightly secured access to the source code at CMI’s headquarters in Owensboro, Kentucky. Immediately after that, lower court judges all began granting access to the Intoxilyzer 5000 source code pursuant to the terms of that settlement.

Now that access had been won in the face of pressure stemming from the Brunner decision, drivers had to organize to actually hire experts to analyze the source code.

This would prove to be a very expensive endeavor, which no single driver could afford to pay alone. One large group of defense attorneys, organized by the Minnesota Society for Criminal Justice (MSCJ), formed a coalition that any defense attorney could join for a fee, and all the collective fees are being used to fund a team of experts to conduct a full analysis of the source code. However, Meaney & Patrin had enough clients with pending source code challenges to locate and hire their own expert to begin analyzing the source code sooner than the coalition.

Once again, the DWI Guys provided the big push to get the State to act. Derek Patrin personally travelled to CMI’s headquarters in Kentucky soon after access was granted and met with the company president and their attorneys on site. He was able to view the room where the source code files were being made available and lay down the logistics for his own expert to begin analysis.

Meaney & Patrin’s expert has already started the analysis of the Intoxilyzer 5000 source code, having travelled to Kentucky and combed through the source code to find weaknesses and other errors. That analysis is ongoing and is looking very promising for the defense.

As seasoned DWI defense attorneys, we have seen many test results from the Intoxilyzer 5000 that were irregular or contained unexplainable anomalies. Other times the actual reported results were much different than would be expected for the number of drinks consumed by our clients prior to driving. The DWI Guys have always suspected that CMI had more to hide and was just using the “trade secret” excuse to shield the source code from close scrutiny. While the machine may not be a completely unreliable instrument, some of our initial source code analysis leads us to believe that the machine is less scientifically reliable than a handheld preliminary breath test used on the roadside by law enforcement. The results of those instruments are inadmissible in court by statute because they are not deemed scientifically accurate and reliable enough to convict people. Our analysis may eventually lead the courts to the same conclusion about the Intoxilyzer 5000. The DWI Guys will continue to lead the way on the attack of these unreliable machines.