Defense attorneys want broader access to breathalyzer code

A group of defense attorneys wants a federal judge to reject a recent settlement between the state of Minnesota and the maker of a breathalyzer device, which police widely use to test alcohol levels in suspected drunk drivers.

The Minnesota Society of Criminal Justice filed a friend-of-the-court brief asking U.S. District Judge Donovan Frank to reject the settlement between the state and Kentucky-based CMI over the accessibility of the breath tester's computer source code.

The state of Minnesota assumed that the breath-testing machine, called the Intoxilyzer 5000, produced accurate blood-alcohol readings. But those facing DWI convictions based on that machine's results wanted more than an assumption - they wanted actual proof its numbers were reliable.

That proof, they argued, was located in the machine's computer program source code, which analyzes a person's breath for alcohol. Just this past April, Minnesota's Supreme Court ruled that motorists charged with DWIs have a right to that source code if they can prove it would aid in their defense.

Defense attorneys sued the state of Minnesota for access to the device's code, but the state didn't have it either. So the state asked the device's maker, CMI for the code. CMI initially declined; it said the code was a trade secret. But under a settlement in the case two weeks ago, CMI agreed to make the code available in Minnesota in a printed, hardbound version. The full electronic version of the code will be available at CMI's headquarters in Kentucky.

The Minnesota Society of Criminal Justice, a group of about 50 defense attorneys says in their brief that the settlement doesn't provide "meaningful" access to the code because CMI doesn't make the electronic version available in Minnesota, only a paper version. The group says "such a copy would be of minimal value and practically useless for analytical purposes."

The state and CMI had reached an earlier settlement in the case in 2008 but U.S. District Judge Donovan Frank rejected it in part because CMI's access to the code was too restrictive. Judge Frank will hold a hearing next week on whether to approve the latest settlement agreement.