Minnesota DWI - Supreme Court Rules Source Codes Must Be Turned Over

What is a Source Code?

In simple terms, the source code is the computerized language that operates a device. It provides the device with a set of commands on how to analyze data and even when to turn "on" or turn "off." Source codes are used to operate your computer, your microwave, or your cell phone. They are also used to operate devices used in DWI cases to determine blood alcohol content.

What is the issue?

As anyone who has used a computer knows, coding errors can occur. Source codes are not infallible. They are subject to human error, mechanical failures and even malicious coding. Treating them as infallible in court when it comes to testing blood alcohol in the breath, violates due process of a defendant when that defendant is unable to seek independent testing of the code used.

The Legal Issue?

In 2006, defendant's in a DWI case in Florida sought the computerized source code for the breath testing device used in DWI offenses, a version of the Intoxilyzer 5000. The source code, it was argued, was necessary for testing to determine if proper programming was included in the device so that it was accurately assessing blood alcohol concentrations.

The issue with the request that occurred was that the manufacturer of the Intoxilyzer device, CMI, Inc., of Kentucky, considered its source code a trade secret and, as a result, refused to release it to the state to be turned over as discovery to the defendant. Ultimately, the Florida Court refused to require the state to provide the defendant, Todd Moe, the source code.

Similar challenges began to spring up in many states. In Minnesota, two Dakota county cases raised the issue. In those cases, State v. Underdahl, and State v. Brunner, the lower trial courts ruled that the source code was discoverable and had to be turned over to the defense. When the company, CMI, Inc., refused to part with its source code, the breath test results were suppressed. The cases were appealed, finally making their way to the Minnesota Supreme Court for review.

On April 30, 2009, the Minnesota Supreme Court issued its ruling on the two combined cases. It decided that computer source code for the intoxilyzer 5000 machine is within the control of the state and that it must be turned over to defense counsel when the defense makes a showing that the under the Minnesota Criminal Rules of Procedure Rule 9.01, subd. 1, provided, however, a showing is made that the information may relate to the guilt or innocence of the defendant or negate guilt or reduce the culpability of the defendant as to the offense charged.

The end result is that the Minnesota opinion provides defense attorneys a template by which they may seek the source code in cases where computerized analysis of breath samples occurs. It does require, however, that the defense, provide a reasonable basis as to why the code is relevant to the guilt of innocence of the individual in more than general terms. In most instances expert testimony related to the nature of the source code and how errors may occur would be necessary coupled with any indicia that errors have occurred historically. Ultimately, if CMI, Inc. continues in its refusal to provide the source code to the state, challenges to the admissibility of breath test results in DWI cases will continue to increase and provide defense attorney's a much needed tool in combating the reliability of the Intoxilyzer 5000.

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NJ Supreme Court Holds New Alcotest DWI - Breath Testing Machine Results Admissible

The Supreme Court on 17 March was adopted in 2008, as amended, the reports and recommendations of the Special Master Judge King. This landmark decision changed the prosecution of DWI cases in New Jersey forever. Under certain conditions, the court held that the Alcotest is scientifically reliable and that its results are acceptable, drunk driving prosecution. State v. Chun 194 NJ 54 3-17-08

The Supreme Court held:

1st There is enough credible evidence to supportcontinued use of the 2100-1 blood / breath alcohol ratio to estimate BAC from a breath sample. The overwhelming evidence shows that this ratio tends to use the actual BAC in the vast majority of persons whose breath is tested underestimated. Despite being a small number of people who are disadvantaged by a device that can be used 2100-1 blood / breath ratio, there is a solid scientific basis for its further use.

2nd The four criteria of the use of the deviceObtain a valid breath sample, having a change, is appropriate. The Court adopts the recommendation that the minimum breath volume requirement should be reduced for women over sixty years, only 1.5 liters to 1.2 liters and comes to the conclusion that this change is not against equal rights. Regardless of at least breathing requirements, no test is of the machine to the infrared measurement plateaus, which occurs only when a suspect expulsion deep acceptedLung air.

Further, while selective reduction of breath volume requirement is a different level, can bring on the women over sixty with rejection, creating shows the protocol that this group, and only this group may not have the physiological function of providing a larger sample . carried out in criminal proceedings and in the future to the prosecution prior to the implementation of Directives of the court, an Alcotest AIR is not based with an insufficient volume errorbe used as evidence for the rejection of women over the age of sixty, unless they have a different sample of at least 1.5 liters.

3rd The Supreme Court refused the recommendation that an air temperature sensor be added to the Alcotest adopt conclude that this device is both unnecessary and impractical. The record contains little evidence of a correlation between temperature and increased breathing breath alcohol concentration, and no evidence that the theoretical increaseBreath alcohol concentration would translate into an inaccurate BAC increased. In addition, any possible impact from the 2100-1 blood / breath ratio and by using cut, rather than rounded, results, both of which improved serve to underestimate the search results. The demand of the addition of a touch sensor temperature would also have a disproportionate burden of maintaining New Jersey breath test program.

4th A tolerance range of an absolute 0.01 percent (plus or minus 0.005 percentfrom the mean) BAC standard, coupled with the use of a percentage expressed as tolerance of five percent plus or minus standard deviation from the mean, is both scientifically appropriate and in accordance with the will of the legislature in the adoption of per se limits. The device must therefore be re-programmed to meet this standard. carried out in criminal proceedings and in the future to the prosecution prior to the implementation of Directives of the court, located where the airReports a BAC using a doubled tolerance range, must verify the given breath samples to determine whether the findings from this tolerance needs. Each AIR are that it can not two valid attempts within the tolerance of this standard is not admissible as sufficiently scientifically reliable and are not considered evidence admitted as evidence per se violation.

5th The Alcotest the use of fuel cells "drift" algorithm does not undermine its reliability.The scientific evidence proved that fuel cell start age when they are put into operation, and will eventually lead to underestimate the power of the Alcotest chemical test for BAC. While there are other ways to be compensated for this "drift," this budget will end up not more advantageous than the defendant minor upward adjustment that the algorithm effects. However, the court takes the Special Master's recommendation that the devices are calibrated
biannualinstead of annually. A semi-annual calibration is in line with the recommendations of the manufacturer and provides a useful by providing a regular opportunity to evaluate and replace aging fuel-cell protective

6th The Supreme Court ruled that the Alcotest's "weighted averaging" algorithm, a corresponding calculation that results in a more precise infrared measurement. There is a greater emphasis on the breath, that inevitably affected the deepest air from the lungs. ItTherefore, the analysis focuses on the part of the breath sample that most accurately represents the theme of the BAC

7th The buffer overflow error is a genuine error in the programming that cause the Alcotest can produce incorrect results in situations where a third breath sample that was taken only when the measurements from the first two tests will not be reported in tolerance. The buffer overflow error in the programming has to be corrected, only the final result BAC reported on the air.Because the infrared and electro-chemical measurements for all samples exactly on the air, the right BAC-value can be reported and must, from which measurements by applying a correction formula to be calculated. In criminal proceedings and in the future on law enforcement tests conducted prior to implementing the Court's guidelines are based, must write to the State all air, which includes three tests, perform calculations to identify the correct BAC in accordance with thatCorrective action formula, and return the data to the court. The calculations shall be made a part of the evidence in any prosecution in order to facilitate an appeal.

8th The Supreme Court noted, enabled adequate support in the record that catastrophic error detection should be returned to the Alcotest. This finding allows the machine to recognize and respond to catastrophic failure by shutting down. There is no basis for the court to conclude that, the lack of catastrophic error detectionResult in an inaccurate AIR in any pending prosecution.

9th The Supreme Court found all the programming style and design of the source code to be acceptable. The final rating in this case, found that only a few factual errors or problems within the source code. As no evidence in the record that any other alleged deficiencies are more than stylistic or theoretical challenges require the court to reject a particular programming language standards at this time.

10th Infuture revisions to the Alcotest software ruled that the Supreme Court of the State must: the Alcotest software, so that only the manufacturer can make the source code revisions locked, have the software that identifies and prints the Alcotest software version that revised it to use any air, and provide detailed notice in accordance with due process to the public and the New Jersey State Bar Association of any future revisions.

11th The Supreme Court ruled, must DraegerAlcotest training, comparable to the state made available, those available to licensed New Jersey attorneys and their experts at reasonable times and places in New Jersey and at a reasonable price.

12th The Supreme Court identified the twelve basic documents of the Special Master must be made during discovery in all areas provided. The operator of the device must be available to testify and has to produce proof of his qualifications to operate the equipment. Thefollowing basic documents that prove a good state of the machine occurs, evidence based certified in criminal proceedings shall be on Alcotest breath testing results: the latest report of calibration, including inspections, tests, linearity and the credentials of the Coordinator, who performed the calibration, the latest new standard solution report used against a defendant to test and certificate of analysis of the 0.10 simulator solution in a defendant's control.These basic documents are not "testimonial" as the United States Supreme Court in Crawford v. Washington and its progeny defined. In so holding, the Court is directed by a majority of other courts, which found that such documents business records, which do not imply not have the confrontation clause.

13th The Supreme Court ruled the air itself, an "explanation" of a machine is not under Crawford recommendation because it does not imply Crawford a central concern - it isnot one report of a past event, given as an answer police questioning, with the purpose of verifying that a defendant has committed a crime. Although the air evidence not testimonial, the Court protect nevertheless mandates various safeguards to an accused a fair trial rights: the ability to cross-examine the operator of the Alcotest, the routine production of all essential documents for discovery and the approval of the core basic documents as evidence toStudy.

The court issued an order simultaneously evacuate its 10th January 2006 to stay of drunk driving prosecutions, appeals, and condemnation, which shall proceed in accordance with the guidelines set forth herein.

The full 130 page opinion is available at http://www.njlaws.com/statevchun.htm

Kenneth Vercammen is the 2008 District Court Attorney of the Year by the Middlesex County Bar Association. He was a lawyer only one of three lawyers selected as Super2008 in New Jersey Monthly in Penal Code - DWI category. Kenneth Vercammen, the New Jersey State Bar Court Advocate of the Year and was a former president of the Middlesex County Municipal Prosecutor's Association. ((He is the past chair of the NJ State Bar Association District Court section. He is the vice chairman of the ABA Criminal Law Committee, GP Division.

KENNETH VERCAMMEN LAWYER

2053 Woodbridge Ave. Edison, NJ 08817 732-572-0500

NJ LAWS LEGAL WEBSITE:http://www.njlaws.com

Criminal website http://www.BeNotGuilty.com

Kenneth Vercammen was one of only three lawyers a Super Lawyer in New Jersey Monthly 2007-2008 in the Criminal Code - DWI. Kenneth Vercammen was the New Jersey State Bar Court Advocate of the Year and past president of the Middlesex County Municipal Prosecutor's Association. ((It in the last chair of the NJ State Bar Association District Court section. He is the vice chairman of the ABA CriminalLaw Committee, GP Division.

KENNETH VERCAMMEN LAWYER

2053 Woodbridge Ave. Edison, NJ 08817 732-572-0500

NJ LAWS LEGAL WEBSITE: http://www.njlaws.com

Criminal website http://www.BeNotGuilty.com

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