Breathalizer Battle Heats Up In Minnesota

One of the more novel legal defenses to be used recently has centered around DUI cases. All over the country, from Florida, to Minnesota, people accused of DUI on the basis of a 'breath test' have requested that the court allow them to closely examine the device that said they were drunk. In most cases, the device is some version of the Intoxilizer made by CMI of Owensboro, KY. The Intoxilizer is probably the most popular 'breathalizer' in the US and as it's use has grown, it's scientific validity has been largely taken for granted. Until now.

Scores of DUI defendants have asked to see the source code of these devices to see what makes them tick, and more importantly, to see if there are any bugs or flaws in the device's programing code. Any bug could be used to instill doubt that the device has accurately recorded the blood alcohol level of a defendant. Additionally, if the device seemed at all capricious about how it determines if someone is, say a .07 vs. a .08 BAC, it would be a 'get out of jail free' card for all these DUI defendants.

Which leads us to the latest development in Minnesota. Multiple courts in Minnesota (including the Minnesota Supreme Court) agreed that the defendants had a right to view the code and asked CMI to turn it over to the defendant's lawyers. CMI refused, stating that the source code was proprietary. This was in spite of the fact that the state contract to purchase the Intoxilizer devices mandated that CMI would provide the source code to the state if asked. Of course, they never did until now, which means it's likely that no one outside of CMI has any idea how the device actually works.

On Monday, the Minnesota Department of Public Safety sued CMI in U.S. District Court to force them to turn over the source code. The DPS needs to code or else they will face a court backlash (which has already begun) in which judges wholesale dismiss DUI cases. CMI for their part, has held fast, but this is the first time that CMI has been the target of a suit.

The more CMI delays and looks reluctant, the more it looks like there might be something really wrong with that source code. No doubt, CMI has a lot to lose. One small bug and DUI cases get thrown out all over the country...and their product becomes the new Quadro Tracker. Refuse to give up the code (or get the court to say they don't have to) and the device becomes questionable in court and useless to their biggest customer, law enforcement agencies.