State sues maker of breath testers used in DWI arrests

If the dispute isn't resolved, Minnesota contends hundreds of drunken driving cases might be in jeopardy and it might have to replace the devices at a cost of $3 million.

By DAN BROWNING, Star Tribune

Last update: March 3, 2008 - 10:30 PM

The state sued Monday to force the maker of the state's drunken driving detection devices to turn over the machines' computer code.

Hundreds of defendants in drunken driving cases have sought court orders to inspect the computer code used in the state's 260 breath-testing devices. But the manufacturer, CMI Inc., of Owensboro, Ky., has refused to turn it over, claiming that it's proprietary information.

If CMI doesn't turn over the computer code, the federal lawsuit says, the state might have to replace the machines at a cost of about $3 million.

The state says it has already had to reinstate dozens of revoked drivers' licenses because it could not produce the code. As a result, many law enforcement agencies have stopped using the machines and turned to blood or urine tests to determine a driver's blood-alcohol content, the suit says.

In 2006, the state conducted about 35,000 breath tests and 5,000 blood and urine tests in drunken driving cases. The growing demands for blood and urine tests, which take about a month to process, have strained the state's laboratory resources, the suit says.

Minnesota alleges that CMI breached its contract, is infringing on the state's copyright, and is failing to act in good faith. It wants a federal judge to declare that Minnesota owns the copyright on the Intoxilzyer 5000EN, to order CMI to turn over the source code, and award unspecified monetary damages. CMI could not be reached for comment Monday, and a call to its lawyer was not returned.

Minnesota has been using CMI breath-testing equipment for at least 24 years. The machines use infrared technology to measure the concentration of alcohol in a person's breath and calculate the equivalent blood-alcohol concentration.

In 1997, the state signed a contract with CMI to customize the equipment, according to the lawsuit filed by Public Safety Commissioner Michael Campion. The contract gives the state copyrights to the CMI model known as the Intoxilyzer 5000EN, the suit says. The contract also requires CMI to turn over information about how the machines function pursuant to a court challenge.

The Minnesota Supreme Court ruled in 1971 that breath tests are reliable. But defense attorneys can still attack them, and defendants have a right to discover evidence assessing their accuracy.

In early 2006, the lawsuit says, Minnesota defense attorneys joined counterparts in other states in demanding the "source code" that makes the machines work.

Campion has been ordered to disclose the code in more than 100 cases. Despite repeated demands, the suit says, CMI has refused.

In September, CMI changed course and said it would produce the code, but only if litigants signed a 10-page protective order, the suit says. Most judges refused to require that, and CMI has rejected less restrictive covenants.

Thus far, only one person in Minnesota has received the code. The company billed the person what Minnesota calls an unreasonable amount: $1,600. (Kentucky's Supreme Court ruled Jan. 18 in an unrelated case that the cost of producing the code is minimal.)

Dan Browning • 612-673-4493

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