MN Supreme Court Decision on Breathalyzer Source Code Intentionally Ambivalent?
Last week, the Minnesota Supreme Court ruled that one DWI defendant is entitled to examine the source code of the breathalyzer used to determine his blood alcohol content, and that another DWI defendant is not entitled to examine the source code of the same make and model of breathalyzer.
The court reasons as follows:
Under Minn. R.Crim. P. 9.01, subd. 2(3), it was an abuse of discretion for a district court to order discovery of the source code of the Intoxilyzer 5000EN when a defendant did not submit any evidence on how the source code may relate to his guilt or innocence; however, it was not an abuse of discretion for a court to order discovery of the source code to a defendant who submitted evidence that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and would relate to his guilt or innocence. State v. Underdahl, Nos. A07-2293, A07-2428, 2009 WL 1150093 (Minn. Apr. 30, 2009).
The evidence presented by the defendant who won access to the code consisted of a definition of source code, and a declaration by a computer science professor discussing voting machines and the law regarding breathalyzer source code in New Jersey. The unsuccessful defendant's lawyer argued that he should have the right to attack the reliability of the test itself, and that the source code was necessary in order to do so, but he only did it during oral argument. Apparently, this is not a distinction without a difference although I fail to understand why.
From a cynical point of view, I guess there is a positive aspect of the decision--since the court reached two completely opposite conclusions in two very similar cases, it left the breadth of trial courts' discretion in discovery matters intact. From a reasonable point of view, the decision leaves the question of whether defendants in DUI or DWI cases should have access to breathalyzers' proprietary source code unanswered.
In sum, both DWI defendants want to challenge the reliability of the breathalyzer through analysis of the source code. One of the defendants won the right to do so because he presented evidence that the source code "may reveal deficiencies about the test's reliability." That evidence was based on access to proprietary source code obtained in a case in New Jersey. So, in order to provide evidence sufficient for discovery purposes that the State should grant a defendant access to otherwise inaccessible proprietary source code, one must provide a copy of buggy proprietary source code. I believe computer programmers would call this an infinite loop.
