State Supreme Court upholds DWI test's reliability

  • Article by: ABBY SIMONS , Star Tribune
  • Updated: June 27, 2012 - 11:00 PM

Despite code errors, state Supreme Court rules out challenges of results.

For Erik Larson, the reliability of the machine that deemed him legally drunk the night he was stopped for a faulty license plate light last fall was key in whether charges against him could stand.

The 31-year-old's wait did not end in his favor Wednesday when the Minnesota Supreme Court upheld a lower court decision that results of the Intoxilyzer 5000EN are accurate, despite the errors in the source code that runs the devices. But, while the justices agreed that tests were valid, they disagreed on whether defendants could challenge the code's reliability.

The 4-3 ruling means that Larson's case and more than 4,000 like it will proceed after being placed on hold during a six-year battle in state and federal courts -- and which involved lawyers for people in 69 counties. The Intoxilyzer is generally used when police give blood-alcohol tests at police stations after stopping suspected drunken drivers.

Many cases, including Larson's, are expected to proceed, likely with guilty pleas.

"I blew a .08 on the nose," he said, referring to his blood-alcohol level, the minimum illegal limit. "I'm disappointed; I was at such a low level."

Justice G. Barry Anderson wrote in the 34-page order that the state of Minnesota "established by a preponderance of the evidence" that the Intoxilyzer is indeed accurate, and that defendants would not be allowed to challenge the operating code in their individual cases.

"Deficient" samples --when drivers do not blow hard enough into the device -- are considered reliable if police present "other evidence or observations" that the breath sample was not adequate.

Justice Alan Page dissented, arguing that withholding the code evidence could violate defendants' fair trial rights, because they "essentially eviscerate the opportunity for an accused to challenge the weight or credibility of Intoxilyzer 5000EN results." He also wrote that defendants are limited to a "credibility contest" with a police officer if they challenge a deficient breath sample.

Justices Paul H. Anderson and Helen Meyer joined in Page's dissent.

Out-of-date device?

In a statement, Minnesota Department of Public Safety spokesman Bruce Gordon lauded the ruling, calling the Intoxilyzer "a valuable tool for law enforcement in the ongoing effort to take impaired drivers off the road."

It was also cause for celebration for Brenda Thomas, executive director for Mothers Against Drunk Driving.

What matters most, she said, is that "some of these families will have a little bit more closure to see that these cases are actually going through."

But defense attorneys who mounted the fight against the Intoxilyzer say they will continue to contest the reliability of what they call an antiquated device.

"The value of a jury hearing all the evidence available in order to determine a person's guilt is slowly being replaced by a mindset that technology is unassailable and [that] the machine, not people, will render the verdict in DWI cases," said Marsh Halberg, one of six attorneys who made up the code trial team during litigation.

Halberg said the next step could be to challenge the accuracy of a chip that was found on some Intoxilyzers to have contained additional unnecessary data.

The devices to be phased out

The challenge began in 2006 when a Dakota County driver argued that he needed the code to determine whether the test results were reliable in his implied consent case. After years of litigation, the data was made available to defense attorneys who demanded it, prompting challenges from across the state. The Supreme Court assigned those disputes to District Judge Jerome Abrams, who in March 2011 issued an order deeming the devices reliable. The case bypassed the Court of Appeals and went to the Supreme Court. The cases, which were stayed last July when the court agreed to hear the case, will now resume unless the defense attorneys file a petition for rehearing.

By the end of summer, the Intoxilyzer should be phased out for DataMaster DMT-G devices.

The DataMaster device has had a flaw, but the state Bureau of Criminal Apprehension says it hasn't affected accuracy.

Ryan Pacyga, an attorney for about 180 clients who mounted the challenge, said he was not surprised by Wednesday's decision, but was troubled that the code cannot be challenged before juries. For instance, he said, it's difficult to convince a jury that the Intoxilyzer may be unreliable without discussing the flawed code.

"We can't put any meat behind our defense anymore," he said. "It's just the bare bones. We need to give juries something to chew on."

Larson will likely make his next court appearance in July. He said he probably won't fight his case because of the cost and time. He says he'll never know if he might actually have been below the legal limit.

"If you're going to get charged for something and it's coming down to a machine, you want that machine to be accurate so you're not getting falsely accused."

Abby Simons • 612-673-4921

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