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08-10-07, 11:19 PM #1
Drunk driver wins the right from the Minnesota Supreme Court to get the source code for the Intoxilyzer 5000
What: Drunk driving defendant says he needs the source code to the Intoxilyzer 5000EN to fight the charges in court.
When: Minnesota Supreme Court rules in his favor on July 26.
Outcome: Source code will be turned over to defense attorneys.
What happened, according to court records and other documents:
When Dale Lee Underdahl was arrested on February 18, 2006, on suspicion of drunk driving, he submitted to a breath test that was conducted using a product called the Intoxilyzer 5000EN.
During a subsequent court hearing on charges of third-degree DUI, Underdahl asked for a copy of the "complete computer source code for the (Intoxilyzer) currently in use in the state of Minnesota."
An article in the Pioneer Press quoted his attorney, Jeffrey Sheridan, as saying the source code was necessary because otherwise "for all we know, it's a random number generator." It is hardly new technology: One criminal defense attorney says the Intoxilyzer is based on the antique Z-80 microprocessor.
A judge granted the defendant's request, but Michael Campion, Minnesota's commissioner in charge of public safety, opposed it. Minnesota quickly asked an appeals court to intervene, which it declined to do. Then the state appealed a second time.
What became central to the dispute was whether the source code was owned by the state or CMI, the maker of the Intoxilyzer.
Minnesota's original bid proposal that CMI responded to says that "all right, title, and interest in all copyrightable material" that CMI creates as part of the contract "will be the property of the state." The bid proposal also says CMI must provide "information" to be used by "attorneys representing individuals charged with crimes in which a test with the proposed instrument is part of the evidence," which seems to include source code.
Campion's office, on the other hand, claims the source code is confidential, copyrighted and proprietary. It has asked for what's known as a "writ of prohibition" barring the source code from being released.
The Minnesota Supreme Court rejected the request, saying "a writ of prohibition is an extraordinary remedy and is only used in extraordinary cases."
This isn't the first time breathalyzer source code has been the subject of legal scrutiny. A Florida court ruled two years ago that police can't use electronic breathalyzers as courtroom evidence against drivers unless the source code is disclosed. Other alleged drunk drivers have had charges thrown out because CMI refuses to reveal the Intoxilyzer source code.
Excerpt from Minnesota Supreme Court's ruling:
The district court ordered the production of the "complete computer source code" for the Intoxilyzer 5000EN. In support of its order, the district court found that under the contract between the state and CMI, the state owned the source code for the Intoxilyzer 5000EN. The court of appeals concluded that the district court's finding was not clearly erroneous given the concession in the state's petition seeking the writ of prohibition that it owned that portion of the source code created exclusively for the Intoxilyzer 5000EN...
Having carefully reviewed the record presented and the arguments of the parties, we conclude that we cannot decide the copyright issues raised. Although the parties direct us to copyright law regarding works for hire and derivative works, they provide only a superficial application of that law to the facts of this case. Perhaps that is because the factual record before us is inadequate, thereby making any determination regarding either copyright theory impossible.
Resolution of this issue, however, does not require us to apply federal copyright law because we also conclude that the commissioner has failed to meet his burden of demonstrating that the information sought is clearly not discoverable and that he has no adequate remedy at law. While on the one hand the commissioner argues that ownership of the source code for the Intoxilyzer 5000EN is to be determined under federal copyright law and that under that law he does not have possession, custody or control of the source code, on the other hand he concedes that the state owns and thus controls some portion of the source code. That concession is supported by the express language of the RFP granting CMI the right to supply the Intoxilyzer 5000EN to the state.
Further, given the express language of the RFP that requires CMI to provide the state with "information to be used by attorneys representing individuals charged with crimes in which a test with the (Intoxilyzer 5000EN) is part of the evidence" when production of the information is mandated by court order "from the court with jurisdiction of the case," it is not clear to us that the commissioner is unable to comply with the district court's order. Accordingly, we cannot conclude that the district court ordered the production of information that is clearly not discoverable...
We do not agree that the commissioner lacks adequate remedies at law. As discussed above, irrespective of whether the state owns any portion of the source code, CMI agreed, in the RFP, to provide the attorneys representing individuals charged with crimes "in which a test with the (Intoxilyzer 5000EN) is part of the evidence" information necessary to comply with a court's order. We conclude that the commissioner's ability to enforce its contract with CMI constitutes an adequate legal remedy.
None of the four circumstances justifying the issuance of a writ of prohibition...are present in this case. We, therefore, hold that the court of appeals properly denied the commissioner's petition for a writ of prohibition.
08-10-07, 11:28 PM #2
After reading the title to this thread, I suspect that you may be PUI
08-10-07, 11:29 PM #3
This is horse shit these attorney only asked for the source code because they knew that CSI would not want it reveled and they could get the case thrown out. These attorneys will not even use the code.
08-10-07, 11:44 PM #4
umm ok but i really dont see how it makes any difference...
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08-11-07, 01:24 AM #5
Want to bet that the source code get leaked after the trial?\\` ` ` ` < ` )___/\
`` ` ` ` (3--(____)
"...but to forget your duck, of course, means you're really screwed." - Gary Larson
08-11-07, 01:28 AM #6
08-11-07, 08:48 AM #7
I can't speak for the rest of you but in my experience most of the drunks I get don't want to blow because they have always been told by attorneys not to. If this works I guess that will all change and everyone of them will be more than willing to submit to the test.
08-11-07, 10:11 AM #8
This sounds like a rediculous motion to push back the adjournment date. I don't see any legitimate use for the information, but so be it. If he wants it, give it to him. We are talking about calibrated scientific instruments. If his only defense is that "it might be a random number generator" then he'll lose very quickly at trial.
If they do submit to a chemical test (breath, blood, urine) and go to court they can take the case to trial or possibly receive a plea bargain from the ADA.
If they are a refusal they go to a refusal hearing and their license is revoked for at least one year and assessed a fine of at least $500 even if they are not convicted at trial. If they are convicted there are additional suspensions/revocations/fines that are applicable."never bring paws to a gunfight" - Jenna
08-11-07, 04:11 PM #9
Brad, the state of NC is getting rid of the Intoxilyzer 5000 starting in October. We are switching to a completely different model.I'm ready for spring!
08-11-07, 04:21 PM #10Cheech Guest
what happened to your fuckin drunk or your not
08-11-07, 05:59 PM #11Civilian
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This sounds like a rookie DUI defense attorney. He must be trying to get a dismissal through endless delays. The source code is of no value to his defense.
08-11-07, 06:13 PM #12
paperwork, paperwork, more paperwork, then court, court, more court.
yeah, them days brotha, are long gone. where the hell have you been???????????YEAH, IM THE BERRIES, AND CHERRIES IN YOUR REAR VIEW MIRROR.
Handle every stressful situation like a dog.
Eat it, Play with it, or piss on it, and walk away!
As smart as man is, we haven't been able to invent a machine that can smell drugs or tell us where a person has walked,” Dogs are sophisticated investigative tools!
08-11-07, 06:18 PM #13Cheech Guest
08-11-07, 06:22 PM #14Civilian
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I've heard of a device that LEOs can shine into a car like a flashlight and it can detect alcohol. Is that just an urban legend?
08-11-07, 09:14 PM #15No one has greater love than this, to lay down ones life for ones friends - John 15:13
"The Wicked Flee When No Man Pursueth: But The Righteous Are Bold As A Lion".
We lucky few, we band of brothers. For he who today sheds his blood with me shall be my brother.
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