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DWI machine's source codes will soon be given to defense attorneys

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Attorneys of suspected drunken drivers can breathe easier. The breathalyzer source code impasse is over.

Monday, the Minnesota Department of Public Safety (DPS) announced it had reached a settlement with the manufacturer of the Intoxilyzer 5000EN, the country's most widely used alcohol detector for suspected drunken drivers.

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Defendants in drunk driving and implied consent cases will now have access to the computer codes used to calibrate the breath machines.

A recent Minnesota Supreme Court decision granted them that right, throwing DWI prosecutions into turmoil. Defense attorneys wanted the codes to see if their clients had been wrongly convicted due to a faulty mechanism in the machines, or were wrongly charged.

CMI, the Kentucky manufacturer, contended it was a trade secret. DPS sued the company in federal court over the codes, which law enforcement officers don't have.

It appears, however, that access to see the actual codes will be provided only at company headquarters out of state. But attorneys are entitled to view a hard copy of the code in Minnesota, and CMI will provide up to $50,000 for experts to interpret and analyze the highly technical computer codes that run the machine. CMI will have to defend it under attack by defense attorneys.

The settlement is contingent on court approval and a hearing June 11.

"We are very pleased that we have given the defense attorneys everything they need to analyze the source code," said DPS Commissioner Michael Campion in a news release. "The settlement should finally put to rest the issue of the Intoxilyzer's reliability. Law enforcement needs the Intoxilyzer 5000EN to keep drunk drivers off our roads."

According to DPS, there were 38,699 impaired driving incidents that occurred in Minnesota in 2007 and were entered onto people's driving records. The Intoxilyzer 5000EN was used in approximately 24,000 of those cases.

Hubbard County Attorney Don Dearstyne said he's not sure what the case means for future prosecutions until he's seen the decision. Currently one defendant is asking for the source code in a Hubbard County DWI arrest.

"Nothing will happen until after June 11," Dearstyne said.

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