After more than five years, Source Code Challenge may be near the end

For more than five years, thousands of DWI convictions have been in limbo while defense attorneys and prosecutors argue whether the source code of alcohol breath test machines provide reliable results.  With a history of fierce disagreement between the two sides, resembling the drama of a heavyweight boxing match, the litigation came to the Minnesota Supreme Court for what may be its last stop.  

On December 1, attorneys on behalf of a coalition a defense lawyers, the attorney general’s office, and state prosecutors presented oral arguments to the Minnesota Supreme Court.  Each side presented its best arguments, but the Court had reservations for each party.  The arguments can be seen in their entirety here.

For those unfamiliar with the source code litigation, here is a brief summary:  When a person is arrested for a DWI one method that the State uses to show blood alcohol content over the legal limit is to have the person blow into an Intoxilyzer 5000.  This machine measures the alcohol content of the breath and gives a reading of that person’s blood alcohol level.  Defense attorneys argued that the programming of the machine, the source code, did not compute the alcohol content reliably.  After many years of disputes between defense attorneys and the State, the reliability was decided by First Judicial District Court Judge Jerome B. Abrams as part of a consolidation agreement by both sides.  Judge Abrams held that the source code produced reliable results except in cases where the machine reported that the driver did not blow enough air.

At the oral argument, the defense lawyers’ representative, Derek Patrin, argued that Judge Abrams failed to put the State to its burden of proving reliability.  Patrin argued that Rule 702 applied to the source code evidence and the State had the burden to prove reliability.  In addition, Patrin was concerned that Judge Abrams’ order would preclude a broad range of challenges to the machine’s reliability in excess of the narrow scope for which consolidation was approved.

The Court seemed concerned at the lack of specificity in Judge Abrams ruling.  Many questions sought clarification on the scope of the order and what related challenges would be affected.  Regarding the factual findings, the Court repeatedly noted that Judge Abrams was not impressed by the defense’s experts and found the machine’s results generally reliable.  The Court also expressed concern that the defense was now trying to overturn a consolidation procedure that they explicitly asked for.

Next, David Voigt, deputy attorney general, spoke about the impact for implied consent hearings.  He argued that the order should be sustained because it stayed true to the narrow scope originally posed by the Court — whether the source code impacted the reliability of the machines.

Finally, Mark Schneider spoke on behalf of the state prosecutors.  He argued that the order should be upheld because Judge Abrams did exactly what was requested.  However, the Court expressed concern over the use of refusal evidence based on insufficient air blown into the machine.  In particular, the Court was troubled by the fact that the order allowed unreliable refusal evidence to be rehabilitated through some unspecified method and introduced in court.

On rebuttal, the Court questioned Patrin about a due process challenge he raised.  Patrin explained that due process would be violated if the order precluded other challenges that were not within the scope of the consolidation agreement.  He again argued that Rule 702 put the burden on the State to prove the test was reliable and that the State failed to meet its burden.

With the briefs filed and oral arguments concluded, we wait for the Supreme Court to make its decision.  Affirmation of the order could clear the way for the prosecution of thousands of DWIs while reversal could lead to further litigation on this contentious issue.  Stay tuned…

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