Driving drunk just may have just gotten a hell of a lot easier. The Minnesota Supreme Court, like a Florida court before it, has ordered the State to turn over the source code to its breathalyzer or face having the evidence excluded. They can't, however, since the equipment manufacturer (a) is claiming that the source code is a trade secret and (b) is apparently beyond the subpoena power of the state court.
Demanding the source code has had mixed results. Courts in New York and Nebraska , for example, held that the prosecutors couldn't turn over the source code because it wasn't in their possession. Courts in Kentucky (where Intoxilyzer manufacturer CMI, Inc. was subject to direct subpoena) and Arizona have ordered the production of CMI's code. In New Jersey, Draeger Safety Diagnostics, Inc. made the mistake of intervening in the case and was directly ordered to turn over the source code for the Alcotest. A Florida court threw out breathalyzer results in over 100 cases when CMI refused to turn over the source code to the State. Minnesota is facing a similar problem with at least one case.
In (at least) Arizona, Florida and Minnesota, CMI's response to prosecutors facing the dismissal of their cases has been more or less the same: Fuck off. CMI has shown a remarkable indifference to the bind they are putting their customers in. CMI's intransigence here is stunning for so many reasons but the central one is this: if courts will not accept Intoxilyzer results as evidence, the Intoxilyzer is not an investigative tool, it is a paperweight. The long term result of keeping the code secret from prosecutors will be the demise of the business.
The difference in the approaches by Minnesota and Florida are another example of, as Ken discussed earlier this week, the difference between seeing prosecutions as a search for justice or a quest for convictions. Minnesota is suing CMI, arguing that it is a breach of contract to refuse to turn over the source code in machine readable form for production to the defendant. The Florida legislature overwhelmingly voted to change the law to make the source code immune from discovery. (NB: The difference may not be so stark. The vote in the Florida legislature was in 2006 and I can't tell if then-Governor Jeb Bush ever signed the law; the recent decisions in Florida courts compelling production suggest either he didn't or the Florida courts invalidated the law.)
I'm not sure how Florida's proposed law would be legal under the Confrontation Clause, and it may not even be necessary. In New Jersey, after losing the trade secrets fight, Draeger turned over its source code to the defense, whose expert claimed that there were considerable problems with the code. The company and State experts disagreed and convinced the court that they were right, upholding the results of the Alcotest.
If I lived in Minnesota I'd be extra-careful on the roads right now. Or maybe just have an extra drink.
Last 5 posts by Charles
- If You Watch the Tape, You'll Still See What You Want To - September 29th, 2015
- On Dying - April 6th, 2014
- Not All Layers of An Onion Are Equally Worth Peeling Back - February 26th, 2013
- Did someone mention consistency? - February 5th, 2013
- Is That A Mote In Your Dog's Eye? - April 17th, 2012