By Shannon Fiecke, Shawn Hogendorf and Keighla Schmidt, Staff Writers 

Drunken-driving court cases across Minnesota have been in disarray for more than two years, with hundreds – if not thousands – of cases on hold or simply thrown out, all because an attorney asked to see the evidence.

Eagan attorney Jeff Sheridan broke new ground in drunken-driving cases in 2006 when he requested access to the computer’s source code that controls the Intoxilyzer 5000EN, the equipment police commonly used to determine the level of alcohol concentrations in suspected drunken drivers.

His inquiry set off a series of court battles over whether suspected drunken drivers had rights to the source code, leading police to change how they test drivers until the legal question was resolved. The matter, on its second trip to the state Supreme Court, has been further complicated because the state said it couldn’t hand over the source code.

The latest twist came in September, when the state of Minnesota reached a tentative settlement with CMI, the company that manufactures Intoxilyzers, which provides limited access to the once-confidential source code.

The settlement allows free inspection of the source code during office hours at the company headquarters in Kentucky under guidelines that the information not be shared. CMI has been reluctant to share the source code, citing proprietary and patent confidentiality.

While it may appear the proposed settlement, which requires judicial approval, resolves the source code dispute, some attorneys say it is meaningless.Sheridan takes a harsh view of the settlement. He argues CMI has no legitimate claim of secrecy and the settlement ignores judges’ orders that the source code be handed over.

“This is just a fancier way of saying ‘no,’” he said. “As we suspected from the outset, this just clearly shows the state had no desire to actually obtain the source code and provide it in a useful form for analysis. This is the state just helping CMI thumb its nose at Minnesota judges.”

The Minnesota Department of Public Safety has not responded to months of repeated requests for comment by this newspaper about the source code issue.

The settlement is the latest shakeup in the Intoxilyzer debacle, in which no one was walking a straight line. The fiasco has put judges in a conundrum and left officers blurry-eyed as they tried to respond to the lawyer-borne battle taking place in the courtroom.

A history lesson

The source code is what runs the software inside the Intoxilyzer machine, basically telling it how to analyze a person’s blood-alcohol content, and converts the data into a numerical reading.

The Department of Public Safety had been ordered by Minnesota state district court judges to provide the code and initially, CMI refused to turn it over to the state.The state has backed the reliability of the Intoxilyzer and argued access to the source code was unnecessary.

The Minnesota Supreme Court eventually ruled that the state had the right to the source code under its contract with CMI.One of the leading defense attorneys on the issue, Sam McCloud of Shakopee, argues that understanding the source code is key to validating the tests. 

“We want to be able to test the computer to see whether the programming is correct,” McCloud said. “We want the source code to see if it’s like other computers in that there are glitches. … Some things are minor and don’t count for anything. Others are major and the state tries to claim they can do what they call ‘validation’ testing to satisfy themselves that the machine is doing something that it’s supposed to do.”

The Minnesota Bureau of Criminal Apprehension has stood behind the machine’s accuracy and “validation testing” performed by the department.Frank Dolejsi, director of the bureau’s lab, is “very confident” in the accuracy of the machines.

“We actually prepare the solutions ourselves. We test them in the laboratory, we monitor when the solutions are changed by the officers and we’ve done years of testing using the simulators as a way of testing the reliability of the instrument,” he said.

Police switch

Besides backlogging court cases and frustrating county prosecutors, the source code issue has “put a strain” on area medical facilities and law enforcement resources, said Scott County Attorney Pat Ciliberto.

Except for the most serious cases involving drunken driving, local police had preferred to use the Intoxilyzer instead of blood or urine testing because it was more economical and produced results faster.

In April, Ciliberto advised law enforcement officers to only conduct blood and urine tests because judges were ordering the source code to be produced in criminal and civil cases.

Although more time-consuming, Ciliberto felt these inconveniences outweighed the possible suppression of evidence.

Three months later, on July 30, Ciliberto advised police to resume breath tests, following a Minnesota Court of Appeals ruling that said a criminal defendant wasn’t entitled to the source code without a showing of relevance. After this opinion came out, the lone judge in the county who had ordered a source code in a criminal case reversed her position.

After the July appellate ruling (now on appeal to the state Supreme Court), Chaska defense attorney Richard Swanson said judges became a lot less willing to allow discovery of the source code.

In Carver County, Judge Philip Kanning said no attorney since the ruling has produced an expert witness able to satisfactorily explain to him why the source code is relevant.

The judicial wrangling has not only caused a headache in the courts, but left police with their own hangover to nurse.

While officers in Scott County have been told they can resume breath testing, police in Carver and Dakota counties continue to use blood and urine tests until a final decision is rendered by the Supreme Court.

To understand how the source code issue has complicated the job of law enforcement officers and affected safety on the streets, read next week’s installment. 

Shannon Fiecke can be reached at (952) 345-6679 or sfiecke@swpub.com [2]. Shawn Hogendorf can be reached at (952) 345-6374 or shogendorf@swpub.com [3]. Keighla Schmidt can be reached at (952) 345-6381 or kschmidt@swpub.com.