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Court rules that DWI defendants can request Intoxilyzer 5000 code

Suspected drunken drivers in Hubbard County will either have to urinate into a cup or give a blood sample after being pulled over if they flunk a field sobriety test.

That's because Hubbard County Attorney Don Dearstyne has asked law enforcement agencies to stop using the Intoxilyzer 5000 breath machine in the wake of a recent state Supreme Court decision that has wide-reaching ramifications for past and future DWI cases.

The court ruled in late April that defendants have a right to request the breath test machine's "source code" to determine if it has been calibrated correctly and the results are reliable.

But there's a problem inherent in that ruling. Cops don't have the secret codes. Intoxilyzers are made by a private Kentucky company that refuses to divulge its trade secret as to how the machines are calibrated.

"The source code is not in any county attorney's possession," said Dearstyne, reiterating the difficulty now facing prosecutors. "It belongs to CMI, which manufactures the Intoxilyzer."

DWI suspect Joshua Allen Zubke, facing two counts of DWI and one count of careless driving in Hubbard County, is the first defendant hoping to capitalize on what could become a systemic loophole.

His attorney, Blair Nelson, of Bemidji, wants to either get the machine blueprints and expose deficiencies in it, or wear prosecutors down to the point they have to dismiss the charges because they can't produce the source code.

Dearstyne, an assistant attorney general and Nelson will be filing briefs Friday before Judge Robert Tiffany on their opposing positions.

The larger ramifications are that prosecutors throughout the state could be stymied by the ruling and be forced to dismiss hundreds, perhaps thousands of pending DWI cases.

The Supreme Court bought into the argument that if voting machines could have faulty source codes as found in the Minnesota Senate race, so, too, could breath test machines be flawed.

Blood-alcohol tests will back up the Bureau of Criminal Apprehension lab as prosecutors await results of the blood or urine samples, Dearstyne worries. The cost will be enormous at a time when the state is strapped financially and the lab is already overloaded, BCA officials said.

There are 260 Intoxilyzers in use throughout the state, said Department of Public Safety spokesman Andy Skoogman. DPS, which oversees the BCA, is currently embroiled in a federal lawsuit with CMI to get the codes, which the company maintains are proprietary information that, if revealed, would put the company at a competitive disadvantage, or out of business.

DPS says 80 percent of Minnesota DWI cases involve the use of an Intoxilyzer test.

Defense attorneys like Nelson want the codes to determine the machine's reliability. Dearstyne believes that argument is a red herring and cautions: Be careful what you wish for.

"In one Minnesota case the defense did obtain the source code, but they had to sign a non-disclosure, protective order not to reveal it." He said. "That was a couple years ago. Interestingly enough, once they got the source code they came in and pled the case."

And, he said it will take extensive testimony from a computer geek to explain what the "thousands and thousands of printout pages of computer codes are. I just can't see what the advantage is to the defense bar and I used to be a defense attorney."

Dearstyne also used to be a cop. "I ran thousands of Intoxilyzer tests as a cop. It's an incredibly accurate machine," he maintains. In test comparisons with blood samples, he said the machine was "surprisingly accurate."

CMI Inc.'s Web site stands by its machine, asserting: "No unproven technology here!"

"Right now we've fortunately got, as part of the field sobriety, to give them a portable breath test (PBT) so that at least gives us a thumbnail of what their blood alcohol content is," Dearstyne said.

"It's not admissible in a trial except in a refusal case but at least it gives us information enough to do the charging and then we just await the results of the lab. Then we amend the complaint to comport with what the test is. It's a lot of extra work."

And that may be what Nelson and Zubke are banking on. They don't have an automatic right to the code. The Supreme Court ruling says they must request the code and show it is essential to proving Zubke's innocence before Judge Tiffany will weigh the request.

"Until the federal lawsuit is settled, in the meantime it will cost the state of Minnesota, which can't afford it, thousands and thousands of dollars in defending this type of action," Dearstyne said.