Minnesota DWI Lawyer & Attorney : Minneapolis DWI Defense Law Firm : Brown Law Offices : St. Paul, Twin Cities MN

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Patterson was arrested for DWI, and his driver’s license was revoked pursuant to the implied-consent law.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.

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In an unpublished opinion issued by the Minnesota Court of Appeals on March 3, 2009 entitled State v. Thompson, Judge Stoneburner affirmed the district court's denial of an accused drunk driver's request to obtain and review the source code for the Intoxilyzer 5000 EN.

In Thompson, the driver challenged his conviction of misdemeanor driving while impaired, arguing that the district court abused its discretion in denying his motion to discover the source code for the Intoxilyzer 5000EN. Under the Minnesota Rules of Criminal Procedure, in misdemeanor cases, any discovery beyond police investigatory reports is by consent of the parties or motion to the district court. Under the rule, the district court may exercise its discretion and require the prosecution to disclose material and information if the defendant shows that the information may relate to the guilt or innocence of the defendant or negate the guilt or reduce the culpability of the defendant as to the offense charged.

Thompson argued that the Intoxilyzer was “the State’s only witness” and asserted that he is entitled to “conduct a full examination” of this witness. He argued that he cannot assess the reliability of the testing method without access to the source code. He asserted that he has shown the relevance of the source code to his guilt or innocence in a manner sufficient to make the district court’s denial of its discovery an abuse of discretion. The Court of Appeals, however, disagreed, relying on the State's expert, who stated:

In the field of forensic toxicology, validation of analytical methodologies for analyzing alcohol and other drugs in the human body is performed exclusively without access to analytical instrument software source code . . . . I have never heard or read of a validation of a toxicological analysis method that was performed with access to the software source code of the analytical instrumentation. I also am unaware of any articles in peer review journals describing the necessity for access to source codes for any validation tests.

Judge Stoneburner opined:

Thompson has not shown the existence of any validation method that requires the source code; has not explained why existing reliability testing (that does not require the source code) is insufficient to establish the reliability of the instrument used in his test; and has not explained how the source code could invalidate existing reliability testing. On this record, we cannot conclude that the district court abused its discretion by denying Thompson’s request for discovery of the source code.

Why do we defense lawyers continue to push for the disclosure of the Intoxilyzer source code? It's actually pretty simple. The code is the hub between a breath sample and the method by which those samples are afforded a numerical value. Remember your math teacher demanding that you "show your work?" The Intoxilyzer manufacturer (obviously intending to protect what it believes to be valuable intellectual property) continues to refuse to show its work. How, then, can the court understand whether the results offered by a machine are inherently reliable?

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