Minnesota Supreme Court Source Code Victory

     The Minnesota Supreme Court issued a “split decision” in two Intoxilyzer source code cases today. However, the minimal showing required for disclosure of the source code augurs well for future defense efforts.

     In State v. Underdahl the Supreme Court ruled that the district court abused its discretion in finding the source code relevant and related to his guilt or innocence. Underdahl made no threshold evidentiary showing whatsoever; while he argued that challenging the validity of the Intoxilyzer was the only way for him to dispute the charges against him, he failed to demonstrate how the source code would help him do so. He advanced no theories on how the source code “could be related to [his] defense or why the [source code] was reasonably likely to contain information related to the case.”

     State v. Brunner, however, yielded a different result. This defendant submitted source code definitions, written testimony of a computer science professor that explained issues surrounding the source codes and their disclosure, and an example of a breath test machine analysis and its potential defects. Brunner’s submissions showed that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to his guilt or innocence. Therefore, the Supreme Court held that the district court in Brunner’s case did not abuse its discretion in concluding that the source code may relate to his guilt or innocence.

     The Court also considered whether the district courts’ findings that the State had possession or control of the source code were clearly erroneous. The Minnesota Rules of Criminal Procedure require prosecuting attorneys to assist the defendant in seeking access to matters that are within the “possession or control” of the State. Both district courts had found that the State is the owner of the source code for the Minnesota model of the Intoxilyzer 5000EN, relying on the request for proposal (RFP) issued by the State when replacing the previous version of its breath-test instrument. The Supreme Court found that the source code was effectively in the possession or control of the state.

     As the law now stands in Minnesota, the defendant must make a minimal showing in order to obtain an order requiring the State to produce the source code. The remedy in per se cases, including the Minnesota version of “extreme DUI”, will be dismissal, with suppression the likely remedy in “less safe” cases. Will the State comply? Will CMI cooperate? Stay tuned.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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