Legal basis of breath test challenged

  • Article by: KATIE HUMPHREY , Star Tribune
  • Updated: May 1, 2009 - 5:27 AM

Defense lawyers cheer and prosecutors fear that a state Supreme Court ruling could sideline the long-used test.

Blood and urine, in.

Breath tests, out?

A Thursday ruling by the Minnesota Supreme Court, tied to a dispute about access to the workings of machines used for breath tests, has defense attorneys cheering and prosecutors thinking about other ways to prove blood-alcohol content in drunken driving cases.

The court, addressing pretrial appeals of two DWI cases from Dakota County, said the state should hand over the "source codes" behind the Intoxilyzer 5000EN if the defendants who request them show that the codes could reveal deficiencies in the machine that could affect guilt or innocence.

But there's the hitch: The state says it doesn't have the codes.

As defense lawyers laud the court's opinion as a victory for fairness and a road map to accessing the records they want, prosecutors fear that thousands of DWI prosecutions could be in jeopardy because breath test results could be thrown out of court if the codes aren't produced.

"It's a catch 22," Dakota County Attorney James Backstrom said.

The Minnesota Department of Public Safety has already sued CMI Inc., the Kentucky-based maker of the Intoxilyzer 5000EN, in federal court to try to gain access to the source codes. The case is continuing after a judge refused to approve a settlement in February.

The private company, which supplies the state's 260 breath-testing devices, has said the information is proprietary.

But requests from hundreds of defense attorneys who sought orders to examine the codes, and the state's inability to produce them, was a driving force behind the federal lawsuit.

"All we've ever wanted, all we've ever asked for, is an opportunity to see how that machine went about arriving at its conclusion," said Jeffrey Sheridan, a defense attorney representing Dale Underdahl in the appeal. "If you're going to use this mechanical accuser, the accused gets to know how that accusation was formed."

Andy Skoogman, spokesman for the Department of Public Safety, said the agency is disappointed in the Supreme Court's ruling, in part because it erroneously says the state has access to the codes. "We're examining our options, which may include filing a motion for a rehearing," he said.

But Backstrom said he plans to play it safe and instruct the county sheriff to use blood and urine tests for DWI cases, rather than risk having objective evidence thrown out.

That doesn't surprise Derek Patrin, the defense lawyer who represented Timothy Brunner in the Supreme Court appeal.

"You'll see a lot more jurisdictions use blood and urine tests so they can make the charges stick," Patrin said.

Ted Sampsell-Jones, a professor of criminal law and evidence at William Mitchell College of Law, said the ruling is good step toward more disclosure for the defense but isn't a clear-cut order that CMI release the source codes.

The court ordered that they be released to Brunner, but it did not order them released in Underdahl's case, saying he failed to demonstrate how the source code would help him ."

"They don't say the state is going to be required to turn it over in every case," Sampsell-Jones said. "District courts have the option to turn it over or not depending on what's shown."

Armed with the court's approval of Brunner's request, Sheridan said he plans to file again with the District Court on behalf of Underdahl.

Katie Humphrey • 952-882-9056

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