Minnesota Supreme Court grants DWI defendants potential access to Intoxilyzer trade secrets

7 May

In a case that sent ripples throughout the criminal law community, the Minnesota Supreme Court held for the first time that a DWI (Minnesota Statute §169A.20, https://www.revisor.leg.state.mn.us/bin/getpub.php?type=s&num=169A ) defendant who makes the appropriate showing that having knowledge of the inner workings of the Intoxilyzer 5000 EN breath testing instrument will negate his or her guilt is entitled to review of the machine’s “Source Code.” http://www.courts.state.mn.us/opinions/sc/current/OPA072293-0430.pdf;  http://www.thenewspaper.com/news/27/2766.asp; http://www.keyc.com/node/21351; http://www.startribune.com/local/south/44102287.html?elr=KArksD:aDyaEP:kD:aUzyaUiD3aPc:_Yyc:aUU; Source Code is a generic term used to refer to how the Intoxilyzer machine uses its software programming to take a breath sample and analyze is components – i.e., what the mathematical relationships and processes are when the Intoxilyzer machine passes infrared waves through the alcohol droplets contained within the breath sample.


As a practical matter, for the State the Intoxilyzer is cheaper and more efficient than testing blood or urine.  The proof also is easier for the prosecutor to arrive at in court, as the Minnesota Bureau of Criminal Apprehension (BCA) lab analyst who tested the blood or urine sample needs to be present in court (a scheduling nightmare), whereas only the Intoxilyzer operator — who often is the arresting officer anyway — needs to testify to lay foundation for the alcohol reading.  Some jurisdictions already have considered abandoning breath tests in favor of blood or urine until the Source Code matter has finally cleared up.  The BCA’s official position is that police still should use the Intoxilyzer, as it is a reliable instrument.


Not all DWI’s will be given a free pass.  There still is almost uniformly a garden variety DWI impairment charge that also is charged as a separate crime on all DWI’s.  So a defendant might be able to get rid of the criminal allegation that they dinged the magic number (.08 or higher) on the magic box (the Intoxilyzer), but they still have to contend with the officer’s observations of their driving conduct, speech patterns, odor and performance on field sobriety tests.  Also, those drivers who were offered a fluid-based test obviously will not be able to take advantage of this new ruling by the Court.


Entry by Ryan Wood. Ryan is an associate in the litigation section at Thomsen & Nybeck and practices in the areas of criminal law and general civil litigation.  Ryan has a wealth of varying experience in the field of criminal law as a prosecutor in multiple jurisdictions, and as a defense attorney handling adult, felony, white collar and juvenile matters.  He also has experience in complex civil litigation.  Ryan has directed cases through mediations, arbitrations, jury trials and the state and federal appellate courts, including oral argument, and has handled literally hundreds of court trials.  Ryan’s public service experience includes authoring materials for and lecturing at Continuing Legal Education and training seminars, serving as a law clerk to a Minnesota District Court judge and also serving as a staffer in the United States Senate.


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