Intoxilyzer Source Code Cases Continue: State Doesn't Have an Obligation to Disclose; Not in Possession
On March 17, 2009, Judge Minge issued an opinion, in Patterson v. Commissioner, that denied an individual accused of drunk driving the ability to obtain the Intoxilyzer 5000 EN source code from the State of Minnesota. Why? Because the state says it doesn't have it.
Patterson was arrested for DWI, and his driver’s license was revoked pursuant to the implied-consent law. On review of the revocation, he argued that he was entitled to discover the Intoxilyzer source code because of its relevance to his challenge to the revocation. The State of Minnesota stated that it did not have possession, custody, or control of the source code and offered an affidavit in support of that fact. The district court denied Patterson's motion and sustained his license revocation on several bases, including that there was no evidentiary basis to believe the code was possessed by or available to the State. Patterson appealed.
The issue in this case is whether the district court abused its discretion in finding that Patterson failed to make a showing sufficient to compel discovery of the source code. Rulings related to discovery entail a considerable exercise of discretion by the district court. According to Judge Minge, "the most obvious basis for the district court’s denial of appellant’s motion was its finding that there was no basis to believe that the source code was in the possession of or available to [the State]."
Judge Minge found that the finding of the district court in this case was grounded on the rule 34 requirement that, to be discoverable, an item must be in the “possession, custody or control” of the party from whom it is sought. The State presented an unchallenged affidavit from a toxicology supervisor for the BCA, who attested that “the only individual or entity in actual possession of the source code . . . is its manufacturer, CMI, Inc." On that basis, the Court of Appeals affirmed.
