Intoxilyzer Source Code Appeal Was a Long Shot from the Start

On June 27th, 2012, the MN Supreme Court of Minnesota upheld the validity of the Intoxilyzer 5000EN source code, thrusting more than 4,000 defendants back into the court system after a 6-year holding pattern. The appeal was spearheaded by a group of private MN criminal defense attorneys casually known as the Source Code Coalition, who mounted the case on the backs of a handful of expert testimony. In Wednesday’s final ruling, the Supreme Court openly criticized the research methodology and, explicitly and repeatedly, noted the ill-preparedness of the Source Code Coalition’s expert witnesses.

The challenge to the Intoxilyzer source code began in 2006 when Dale Underdahl was pulled over on suspicion of DWI. Underdahl was administered a breath alcohol test using the Intoxilyzer 5000EN. The reported value of Underdahl’s BAC was .23 and he was arrested and charged with a 3rd degree DWI.

Underdahl’s attorneys chose to appeal the conviction using a relatively novel strategy—questioning the source code of the Intoxilyzer device. The source code can be considered the script of the device’s operating system—it’s the computer data that governs the functioning of the machine.

The Intoxilyzer 5000EN is manufactured by the Kentucky-based technology firm CMI. The source code for the device is the patented, intellectual property of the manufacturer, and thus not publicly available. Fully knowing that the state did not possess the source code for the device, the Underdahl defense team filed a discovery motion and argued that unless they were granted access to the source code for review, the evidence obtained via the Intoxilyzer should not be used in the criminal trial against the defendant and that its absence was a sufficient basis upon which to dismiss the charges.

The court ruled that the source code was relevant to the criminal case and in 2009, the State of Minnesota filed suit in federal district court, alleging CMI breached its contract and demanded that the manufacturer provide the State with the Intoxilyzer code.

The code was then provided to the defense so that they may examine its validity and reliability. This defense team eventually joined forces with over 50 other private MN criminal defense attorneys to form the Source Code Coalition, a group dedicated to the source-code-cause with a combined caseload of over 4,000 cases from across the state of Minnesota. The Source Code Coalition was tasked with examining and analyzing a source code which was never expected to have been made available.

The Coalition originally sought the expert testimony of Computer Forensic Services (CFS) who, upon testing the source code, advised the defense that the source code was reliable. Undeterred, the Source Code Coalition decided to commission new experts who could find defects in the Intoxilyzer source code.

The result? Over 4,000 defendants left in a moratorium for years in the hope that the long-shot appeal was worth the gamble.

The Supreme Court made no secret of their disdain for the defense’s witnesses, stating that the original testimony of CFS “cast a large shadow over the hearing” and that key witness Timothy Black’s report, in fact, confirmed the reliability and validity of the CFS results. The court also attacked Black’s research methodology, offering that “The principal shortcoming in all of Mr. Black’s criticisms of the 5000EN is the lack of documentation for the testing and experiments he conducted”and that “he lacked a disciplined approach” (16).

Another of the defense’s expert witnesses expressed her concern that she may not be qualified to testify to the issues. The judge confirmed that, indeed, her credibility was never established and “Her initial concern was proven correct” (17).

In the end, the ruling was made that DWI and implied consent appeals could no longer be made on the basis of source code error: “Having concluded that the validity of the test results in question were unaffected by the alleged source code defects, the district court ruled that appellants would not be allowed to present evidence to the trier of fact in each individual case relating to source code challenges to Intoxilyzer 5000EN instruments that reported a numerical value for measured breath alcohol”

According to Avery Appelman, a MN criminal defense attorney with no connection to the Source Code Coalition, the source code strategy was unsubstantiated from its inception. “I’ve researched countless scientific journals, talked to government and private experts, and compared the results of parallel tests myself. The Intoxilyzer is a reliable testing instrument, which has been proven time and again. When issues of test validity do arise, they are linked to either operator error or test subject error–not the source code. The Supreme Court opinion essentially deems the source code appeal as falling just short of being a meritless claim.”

The entire source code warhorse was sent to battle without the intention of ever using said source code. Now, more than 4,000 Minnesotans who have had their cases on hold for years are going to flood into the court system, only adding to the current congestion. Additionally, many attorneys involved with the Coalition who have handled hundreds of such source code cases will now be inundated with an enormous amount of work for which they likely won’t have the time or resources to devote individualized attention to their individual clients.

Many defendants will now face jail time and license revocation, years after the date of the original offense. In many cases, the laws governing their offenses have been amended and changed multiple times since they were originally charged, further complicating the litigation process.

As a follow up to this article, we will be providing further insight into the repercussions of this ruling on both the courts and clients.

Related Sources:

In Re: Source Code Evidentiary Hearings in Implied Consent Matters,
In Re: Source Code Evidentiary Hearings in Criminal Matters.

State v. Underdahl, 749 N.W.2d 117, 121 (Minn.App.2008).

State v. Underdahl, A07-2293, A07-2428

State v. CMI Kentucky, Inc., 08-cv-603 DWF/AJB

Michigan Man Hired Hit Man to Cover up Wife’s Murder

Michigan man, Bob Bashara, was uneasy knowing the key witness against him, Joseph Gentz, might testify that Bashara hired him to kill his wife in January.  To fix this problem he searched for a new hit man, allegedly meeting with two men to have Gentz killed in jail.

Unfortunately for Bashara, one of those men contacted the police.  On Monday, he wore a wire to record a conversation with Bashara that allegedly discussed a $2,000 down payment for someone to murder Gentz.  Later that day, Grosse Pointe Park police arrested Bashara on a charge of solicitation to murder.  He had an arraignment on Wednesday where a judge set his bond at $15 million.

Bashara is a person of interest in the murder of his wife, Jane Bashara, who was strangled on the night of January 24.  Her body was found in her car the next morning, an autopsy reporting a crushed windpipe and missing fingernails.  A few days later, Gentz turned himself in telling police he was hired by her husband to kill her.  Gentz was arrested and charged with first-degree murder.

As of today, Bashara only faces one count of solicitation to murder, even though he also tried to solicit a second person to kill Gentz.  According to Wayne County Assistant Prosecutor Lisa Lindsey Bashara’s ex girlfriend, Rachel Gillet, has an order for protection against him.  He also owns a building and threatened to evict tenants if they told police about his relationship with Gillet.

Solicitation of murder is a serious crime and can carry a penalty of life in prison. If you or anyone you know is charged with a crime call the criminal trial lawyers at the Appelman Law Firm.

Related Sources:
CBS News
Detroit Free Press

Farmington Woman Cheats Ignition Interlock System

IgnitionInterlockJennifer Brody was arrested last Tuesday night and charged with her fourth DWI despite being on the ignition interlock system.  Believe it or not, Ms. Brody was driving a car with a Smart Start Ignition Interlock device installed in it.

When Brody was pulled over, the officer smelled the odor of alcohol coming from her vehicle.  When he noticed the ignition interlock system, the officer asked her to start her car.  Brody tried, but the car never started.  She then tried to flee police and was eventually tased before being arrested.

Smart Start, the company that installed Brody’s ignition interlock system, is a program that allows a person whose driver’s license is revoked due to an alcohol related incident,  to have restricted driving privileges sooner than would otherwise be allowed.  Prior to starting a vehicle with an installed ignition interlock device, a driver is prompted to take a breath test.  If the driver’s breath sample is negative for the presence of alcohol, the car may be started.  After the breath test has been supplied, the interlock requests random tests every 10-45 minutes.  The driver has only 6 minutes to take the test or it will count as a violation and will instantaneously ask for another test.  If the driver ignores more than 3 tests, the vehicle will go into a lockout.

To be certified in MN, an ignition interlock device must have a camera that snaps an image of the person providing the breath sample. One would think that a camera would ensure that only the driver would submit to the breath the test.  How is it possible that Jennifer Brody was able to start her car, and continue driving despite the random tests that are given?

Minnesota DWI Lawyer, Avery Appelman, suggests that there is any number of ways to cheat the Smart Start Interlock Device, “presumably Ms. Brody had a friend in her car who was able to provide a clean sample.” Mr. Appelman opined that Ms. Brody’s situation is quite severe, “she intentionally breached the agreement she had with the state to comply with the interlock program, making this 4th DWI even more aggravated.” Mr. Appelman said, “I wouldn’t be surprised if Ms. Brody was facing some incarceration as a result of her 4th DWI while on the interlock program.”

Obviously, Ms. Brody’s case is a serious Minnesota DWI offense. If you or someone you know is charged with an alcohol related offense in Minnesota, call the criminal trial lawyers at Appelman Law Firm.

Related Sources:
CBS News

Drug Control Strategy Decoded: Reentry Council

The Federal Interagency Reentry Council is an organization that is mentioned many times throughout the 2012 National Drug Control Strategy. So, what is the FIRC?

The Federal Interagency Reentry Council was first convened in 2011 to address the problem of offender recidivism in the United States. The council gives the following examples to demonstrate how important it is to focus on reentry:

-1 in 100 U.S. adults is currently incarcerated; 1 in 15 African American men are currently incarcerated.

-95% of those behind bars will be released back into the community.

-2 in 3 released prisoners will be arrested again within 3 years.

The mission of the Council is to assist offenders leaving prison in becoming productive citizens, make communities safer by reducing recidivism and victimization, and save taxpayer dollars by lowering the costs of incarceration.

The term “interagency” refers to the collaboration of 19 different law enforcement and social service agencies:

1. Department of Justice

2. Department of Labor

3. Department of Education

4. Department of Health and Human Services

5. Department of Housing and Urban Development

6. U.S. Department of Agriculture

7. Department of Veterans Affairs

8. Department of the Interior

9. Domestic Policy Council

10. White House Office of Faith Based and Neighborhood Partnerships

11. Federal Trade Commission

12. Office of Management and Budget

13. Social Security Administration

14. Office of Personnel Management

15. United States Interagency Council on Homelessness

16. Internal Revenue Service

17. Office of National Drug Control Policy

18. Court Services and Offender Supervision Agency

19. Equal Employment Opportunity Division

The inclusion of all 19 agencies reflects the enormous struggle faced by drug offenders upon their release from incarceration and reentry into the community. The reentry council addresses many aspects of this challenge, such as employment, health, housing, substance abuse, veteran status, and financial concerns.

The Reentry Council was formed to address the issue of recidivism among drug offenders, who have unique challenges to overcome after leaving incarceration–especially in Minnesota. Last year, a study found that Minnesota has the highest recidivism rates in the country. For such offenders, it is especially important to retain an experienced MN criminal defense attorney.  Stay tuned as we continue to discuss the National Drug Control Strategy in our blog series Drug Control Strategy Decoded.


Stacy Kaye gets DWI charge dismissed

StacyIn June of 2012, criminal defense attorney Stacy Kaye put her litigating skills to work and won big in the courtroom.

In December of 2011 a woman, Ms. G, was stopped by a police officer and charged with a DWI leading to the revocation of her driver’s license and the impoundment of her license plates.  A few days later Ms. G was given a copy of the police report regarding the incident. The officer says he was on routine patrol in Alexandria and turned onto a public access road to check the Burgen lake access.  As he traveled down the road he observed tracks from a vehicle that appeared to have driven in a circle two times.  He believed this was suspicious behavior and stopped the vehicle.

In January 2012 Ms. G received a second version of the police reports where the details of the stop of her vehicle were different.  In this version of the report the officer stated that as he was checking the lake access he observed a vehicle make what appeared to be a circle near the lake.  A few months later the Attorney General informed Ms. G that he had received additional information about the reason for the stop that had not been disclosed to them.  Apparently, the officer added that he stopped her vehicle because he was worried about icehouse robberies on Douglas county lakes.

Because of the inconsistency of the reports and the belief that no matter which version or combination of events was true, it didn’t amount to a valid basis for a stop, Ms. G filed a pretrial motion to suppress evidence and dismiss the DWI charge on the grounds that the officer lacked reasonable articulable suspicion of criminal activity at the time of the stop.  She also filed an implied consent petition challenging the legality of the revocation of her driver’s license and license plate impoundment.

Thankfully, criminal trial lawyer Adam Goldfine went to the scene shortly after the incident to document the area.  If not for his thorough and timely investigative efforts, it would have been too late to go back and photograph the lake nearly six months later when we were first informed about the officer’s concern about icehouse robberies.

At Ms. G’s omnibus hearing, the deputy was cross-examined and was unable to recall whether there were any icehouses near the access point on that date, whether the lake was frozen solid, and whether there had been any recent robberies on Lake Burgen.  Also, weather records from the National Oceanic and Atmospheric Association for November and December 2011 show that there was no ice or snow on the ground with the exception of a few inches in late November.  The reports also indicated that the highest recorded temperatures on each day throughout this period were well in excess of freezing (32 degrees Fahrenheit) on all but 3 days in November and on all but four days in December. Therefore, the officer’s suspicion that there was a solid layer of ice on the lake sufficient to withstand icehouses is extremely doubtful.

On June 18, 2012 the judge granted the motion to suppress any and all evidence obtained as a result of the traffic stop as there was no particularized and objective basis for the stop and reinstated her driving privileges.

MN attorney Stacy Kaye says, “I think this case shows the importance of having an experienced criminal defense attorney take a careful look at all the evidence presented and making sure that the police didn’t take any shortcuts in their procedures. It may seem like just a technicality or a loophole when we are able to get evidence suppressed on the basis of an illegal stop or other procedural error, but those procedures are mandated by the constitution for important reasons. It’s generally very easy for officers to legally obtain evidence of wrongdoing without cutting corners, and so procedural restrictions on how far they can go are so minimal that any overstepping should be taken very seriously.  If not for Ms. G. quickly acting to retain us, it is highly unlikely that she would have been able to prove that the purported reason for the stop was unfounded or to convince a judge that her rights were violated by the officer’s conduct.”

Sandusky Defense Rests Without Former Coach’s Testimony

The Sandusky defense team rested today without calling the alleged child-sex abuser to testify. The media has been abuzz with speculation about whether or not the former Penn State coach would take the stand. Today, that question has been answered and the trial now moves to jury deliberation.

Was it a smart move to keep Sandusky silent during trial? MN criminal defense attorney Avery Appelmanargues that, in a way, he already has:

“The state played the Costas interview in full and provided transcripts for the jury to read. They heard Sandusky answer questions, quite similar to those that the state would ask. So the real question would have been: Does Sandusky need to take the stand and deny each and every allegation brought up in the trial?”

Apparently, the answer would  be no.

It seems as though Joe Amendola and the rest of the attorney team dedicated much of the defense to addressing the aforementioned Bob Costas NY Times interview. During the conversation, Sandusky provided a series of bizarre answers which perhaps served only to work against his case. The defense called a psychologist to testify that Sandusky exhibits telltale symptoms of a histrionic personality disorder, an argument quite obviously meant to excuse his odd behavior and admissions during the interview. This testimony may be weakened by the fact that Sandusky did not testify in court today. Appelman says that “In order for his psychiatrist to have effectively moved forward with his histrionic personality disorder defense, Sandusky should have testified to lay the foundation for his behaviors that give rise to the mental condition.”

Additionally, Appelman posits that the risk in a defendant taking the stand is that he may be cross-examined and have his credibility attacked by the prosecution.

“That would have certainly happened here. The state was licking its lips at the prospect of Sandusky taking the stand. His outright denials would have allowed the state to ask  if he is calling all of his accusers liars and follow up with why all of these young men, unconnected with each other would lie about something so horrible and subject themselves to public scrutiny and cross examination. There would have been no positive manner for in which Sandusky to respond.”

With the conclusion of the defense, the jury will now begin deliberation for the 51 counts of child sexual abuse. If convicted, Sandusky could receive hundreds of years in prison.

MN criminal defense attorney Avery Appelman estimates that the jury will be back with a decision in just a couple of days.  “I don’t envy Joe Amendola. The Sandusky team had a difficult task and ultimately, the trial seems to favor the prosecution. The state simply made the better arguments. In all likelihood, he’s going down for this.”


Minneapolis Police Officer Charged with Felony Assault

David CliffordA Minneapolis police officer and sergeant with its SWAT team, David Clifford, was charged with assaulting a man at Tanners Station, an Andover restaurant on Saturday evening.

According to the criminal complaint, Brian Vander Lee was dining with his wife and brother on Tanner’s Station patio when Clifford confronted him.  Vander Lee was on the phone with a friend, describing where they were seated so the friend could easily find them, when Clifford got up and started yelling “You want to keep it down?” According to witnesses, Clifford approached the Vander Lee’s table and punched him in the mouth causing him to fall backward and hit his head on the pavement.

Vander Lee’s brother and friend chased Clifford into the parking lot but his wife picked him up before they could speak to him.  Clifford surrendered to the Anoka County sheriff on Sunday.

Clifford’s version of events differs substantially from that of the witnesses. Clifford informed police that he was at the restaurant with his wife and friends planning National Night Out events.  He was repulsed by the language Vander Lee was using so he asked him to stop.  Vander Lee stopped for a few minutes and then began swearing again.  When Clifford moved towards the table, Vander Lee stood up, so Clifford punched him in self defense.

Investigators said none of the restaurant employees reported hearing Vander Lee use any offensive language.

The victim, Brian Vander Lee, was left hospitalized after undergoing surgery to relieve brain swelling.   On Monday Vander Lee was reported to be off life support and in stable condition.

Minneapolis criminal defense attorney, Avery Appelman says, “The concern with this case, as with any involving a law enforcement official as a potential defendant is a cover up. Mr. Appelman stated that with any physical encounter with a police officer, the “Blue Brotherhood” tends to stick together to protect one of their own,  “my experience with police officer malfeasance is that it goes undocumented and poorly investigated.” Obviously, any poorly operated investigation would benefit Mr. Clifford.

Criminal trial lawyer Avery Appelman asserts that “the charging already reeks of beneficial treatment, the injuries Vander Lee suffered would amount to an Assault in the First Degree which would require a judge to send Mr. Clifford to prison, whereas the lower level Assault in the Third Degree that is charged would not mandate any prison time.”

If you are charged with an Assault in Minnesota it is imperative that you secure an experienced criminal defense attorney.

Sandusky Team Intends to Present Psychological Defense

The attorneys for Jerry Sandusky will soon present their defense to the jury as the child sexual abuse trial carries on. According to court documents, the judge is allowing a defense mounted on psychiatric evaluation to be entered. The defense team will argue that Sandusky suffers from a histronic personality disorder. This is a psychiatric condition marked by dramatic and often inappropriate behavior done to elicit approval from others.

A psychologist will take the stand at trial and testify that the recorded statements made by Sandusky are indicative of someone from histronic personality disorder.

According to MN criminal defense attorney Avery Appelman, the Sandusky team is choosing a very risky defense, one which argues “my client only did these acts because he suffers from a mental illness that impairs his ability to control his impulses.” Historically, defenses of this nature tend to fail in court.

“The defense is raising this psychological defense to combat the number of very personal letters Sandusky wrote to some of his accusers and to explain his answers in the ill advised and un-prepared-for Bob Costas interview where Sandusky failed to deny outright that he had a sexual orientation toward boys. The defense is hoping to portray Sandusky as a gregarious, extrovert, who exhibits outlandish behavior (histrionics) as a result of a personality disorder. This is not an attempt to excuse any sexual contact, but rather to remedy the mistakes made during the interview.

The defense also intends to argue that in Sandusky’s “football culture”, behavior such as showering with children is considered normal and acceptable, but that there was no sexual motivation behind his actions. The defense also intends to rely on the close knit bond that football players have with one another as a means to explain the allegations. Something along the lines of “we football players smack each other on the butt all the time, it is an act of endearment and encouragement” not one of sexual predisposition.

I am positive the defense intends to call a variety of witnesses to testify to the physical play among football players and the culture surrounding the team. This most likely will have little impact on the jury’s view of the case. By now they have heard from many witnesses alleging forcible sexual penetration by a much older and powerful figure in their lives. Football culture and butt smacking won’t carry much weight in court.”


Texas-Style Justice

A father from Shiner, Texas is still waiting to hear if he will be indicted for fatally beating a man who was allegedly molesting his young daughter. The alleged molester was a ranch hand on the family farm. The young girl’s brother saw the man walk the girl into the brush, then heard he start screaming. He ran and grabbed the father, who pulled the man off his daughter and beat him.

According to Lavaca County Sheriff Micah Harmon, it will be the decision of the grand jury whether or not to file charges against the father. The sheriff and the neighbors of the family are overwhelmingly in support of the father. The popular opinion is that he responded appropriately, which is why the county prosecutor has shifted the responsibility to charge the man to the grand jury.  Local authorities do not yet believe that any charges will be filed against the father.  According to Sheriff Harmon, “He was protecting his daughter and I don’t think he knew that the individual would die. He was just doing what he thought he had to do to protect his daughter.”

According to MN criminal defense attorney Stacy Kaye:

“My guess is that they won’t file charges and chalk it up to self defense, although technically it probably wouldn’t apply, at least not to anything that happened after the assault was interrupted. But I can’t imagine even the dumbest Texas prosecutor being foolish enough to think a jury would vote to convict. There is also an old common law that drastically mitigates consequences for people who catch their spouses cheating and lash out violently, kind of like temporary insanity. Some states have eliminated this as they modernized their statutes but Texas isn’t exactly on the cutting edge of legal reform, so it very well may still apply.”


DWI Victim Now Being Charged With Same Offense

gavelJust 6 months ago an Army veteran Kyle Kissinger was declared a good Samaritan across local media outlets when he suffered severe injuries while attempting to stop his friend from rinking and driving.   Ironically, he is now facing DWI charges of his own.

In January of 2012 Kissinger tried to stop his friend, Jason Schultz, from getting behind the wheel after having too much to drink.  When he reached in the car to pull the keys out of the ignition he accidently got hung up on the car as Schultz was speeding away, and was dragged for two blocks.  Kissinger ended up in the hospital suffering severe head trauma and multiple lacerations.

On Tuesday, Kissinger was pulled over by the Roseville police for crossing the fog line and nearly hitting the curb and a mailbox.  Initially Kissinger claimed to have been trying to make a call, but after further questioning he admitted to having a few tall beers at Buffalo Wild Wings before getting behind the wheel.   He took the preliminary breath test with a result of .13. Despite everything he has been through, Kissinger did not take his own advice and was charged with a DWI.

If you are facing DWI charges in Minnesota contact an experienced criminal defense attorney right away.