Thursday, August 9, 2007

California DUI Breath Machine Maker's Source Code to go to DUI Defense Attorneys

DUI Defense Attorney update

Source code will be turned over to defense attorneys.

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

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

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

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

CMI makes California DUI Intoxilyzers which are used in San Diego PD DUI jurisdictions.