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.
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