On June 27, 2012, the Minnesota Supreme Court released its long-awaited decision regarding the validity of the Intoxilyzer 5000EN breath machine, used in thousands of pending Minnesota DWI cases. By a 4-3 margin, the Supreme Court upheld the validity and reliability of the Intoxilyzer 5000EN machine. A copy of the decision is available here.

The decision ends an approximately six-year battle regarding access to, and analysis of, the Intoxilyzer’s source code, which governs the machine’s operation. Despite finding errors in the source code, the Minnesota Supreme Court ruled that these errors do not affect the reliability of the test results. Thus, more than 4,000 pending DWI cases will return to district court for resolution or trial.

Specifically, the Minnesota Supreme Court ruled:

1. The district court did not abuse its discretion when it denied appellants’ motion to exclude all test results produced by the Intoxilyzer 5000EN in their individual trials or hearings because, at an evidentiary hearing held in accordance with Minn. R. Evid. 104, the government established by a preponderance of the evidence that Intoxilyzer 5000EN instruments that report a numerical value for measured breath alcohol are reliable and unaffected by alleged source code errors.

2. The district court did not violate appellants’ due process and fair trial rights when it made a pretrial determination that evidence relating to the source code defects alleged at the evidentiary hearing would not be allowed in their individual trials or hearings if the Intoxilyzer 5000EN instrument reported a numerical value for measured breath alcohol.

3. The district court did not abuse its discretion when, in accordance with Minn. R. Evid. 104, it made a pretrial determination that Intoxilyzer 5000EN instruments that report a deficient breath sample while running the 75-0240 version of the source code are unreliable unless there is other evidence or observations that demonstrate the deficient sample was not the result of a source code error.

Dissent

The three justices who dissented from the majority’s ruling disagreed with the Court’s second and third rulings. The dissent wrote that while the Intoxilyzer test records should be admissible at trial, defense lawyers should be allowed to introduce evidence of the source code errors at trial because such evidence goes to the weight or credibility of the Intoxilyzer test. Defendants are entitled to a full defense under the Constitution and can introduce relevant evidence, subject to certain evidentiary limitations. The majority’s decision establishes that the source code errors are not relevant, and therefore, any evidence regarding the errors is inadmissible at trial. The dissent disagreed, finding that certain source code errors are relevant, and defense lawyers should be allowed to introduce them at trial.

Second, the dissent disagreed with the majority’s ruling regarding Intoxilyzer test records indicating deficient breath samples. In these cases, drivers have been charged with test refusal for failing to blow “adequately” into the Intoxilyzer machine. However, the Court acknowledged that there exists a known defect in the source code, whereby the Intoxilyzer rejects perfectly valid breath samples when a test subject blows too hard into the machine. As a result, some drivers have been charged erroneously with test refusal and lost their driving privileges through no fault of their own.

The majority’s decision ruled that despite this known defect, deficient breath samples will be admissible at trial to prove test refusal if the State introduces “other evidence or observations that demonstrate the deficient sample was not the result of a source code error.” This “other evidence or observations” include “an officer’s observation that the driver did not engage in exorbitantly hard blowing or other conduct that would cause the 240 software to report an adequate breath sample as a deficient sample.” Thus, even though the machine is unreliable with respect to reporting deficient breath samples, the State will be able to rehabilitate the problem if a police officer testifies that the driver is not blowing adequately into the machine. The dissent wrote that the majority’s decision effectively will preclude most drivers from effectively challenging the deficient test records due to a credibility contest that the driver is not likely to win. According to the dissent, “the State is permitted to introduce evidence to establish that the source code was not at fault based purely on a police officer’s observations, but the defendant is unable to produce evidence to establish that the source code was at fault based on the operation of the source code.”

Petition for Rehearing

On July 6, 2012, the coalition of defense lawyers filed a Petition for Rehearing with the Minnesota Supreme Court. The petition seeks reconsideration of the court’s second and third rulings, as listed above.

On August 7, 2012, the Minnesota Supreme Court denied the defense lawyers’ Petition for Rehearing. A copy of the order can be found here.
With the denial of rehearing, the source code litigation has ended in favor of the State. Thus, defendants in criminal cases and petitioners in Implied Consent cases will be returning to district court for resolution of their cases.