Judge rules blood-alcohol tests are reliable

  • Article by: ABBY SIMONS , Star Tribune
  • Updated: March 9, 2011 - 10:42 PM

Up to 4,000 DWI cases can proceed as charged after a five-year legal battle.

It's back to court for thousands of accused drunken drivers in Minnesota now that blood-alcohol readings from a controversial breath-testing device have been deemed reliable by a Scott County District Court judge.

The device's much-debated computer source code contains errors, Judge Jerome Abrams wrote, but the problems and limitations "do not materially impair accuracy, validity or reliability of the results."

Abrams' 122-page ruling, filed Tuesday, for now ends a nearly five-year legal battle mired in state and federal courts involving lawyers for 4,000 accused drunk drivers in 69 counties. Each case will now return to its home county.

The DWI and implied-consent cases were put on hold when defense attorneys raised questions about the device, called the Intoxilyzer 5000. The device is generally used when police give blood-alcohol tests at police stations after stopping drivers on the road.

State officials called the ruling an expected victory.

"We've been saying for years now that the Intoxilyzer 5000 is an effective tool for law enforcement,'' said Doug Neville, spokesman for the Minnesota Department of Public Safety. "Today just shows we've been right all along."

Marsh Halberg, one of the leaders of a coalition of defense attorneys in the case, claimed partial victory as well, noting that the state is phasing out use of the device. He said attorneys will discuss whether to apply for special permission to appeal the ruling as a group or individually. Appeals cannot be filed until defendants are convicted or a judge issues an order.

Defense lawyers focused their challenge on the validity of the computer code that runs the device, the Intoxilyzer 5000EN. The state has 264 of the devices. A different machine is used for field tests, such as those given to drivers when first stopped.

Manufacturer scolded

Abrams' ruling criticized the Intoxilyzer's Kentucky-based manufacturer, CMI, for withholding its source code from the state, which sued in federal court for access to the data. A settlement of that suit, approved by the court, made the data available to defense attorneys who demanded it to determine whether the machine gave accurate blood-alcohol level readings. "A less defensive posture and access to the code would likely have increased confidence in results and would have reduced the need for this protracted litigation." Abrams wrote in his ruling.

Although reliable, the Intoxilyzer appears to be "severely challenged" by its limited data-processing capacity, Abrams wrote. It "appears to be at the edge of its usefulness" because source code changes create additional problems and its code should be written for slower computers, the judge said.

Being phased out

Since the legal challenge, a number of jurisdictions ditched the Intoxilyzer in favor of blood or urine tests, which take longer to process and have slowed down DWI cases.

The state is phasing out the Intoxilyzer in favor of the Datamaster DMT breath testing machine, which should be released within the next six months after training and testing at the state Bureau of Criminal Apprehension. Neville said the new machines have long been part of the plan and are not the result of the Intoxilyzer litigation.

Halberg thinks differently. "The thing we're really proud of is how this has been a catalyst to purchase new machines," he said. "We finally have taken this dinosaur of a machine and are trying to bury it."

Both sides took criticism from Abrams, who referred to them as "creative," "cavalier" and "defensive" in dragging out the legal fight. "Each side, when given an opportunity to present testimony ... could not see any position, abandon any argument or miss an opportunity at contentious rejoinder." he wrote.

Abby Simons • 612-673-4921

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