Much attention is placed on breathalyzers and related machines used to test suspected drunk drivers’ blood alcohol concentration (BAC); however, the software is just as important as the hardware. In fact, experts assert that the software is, in fact, the weakest link in the entire testing process.
Minnesota’s first breath test instrument was the Intoxilyzer 5000 EN, and it took quite a while for a judge to finally order the government to provide the source code—the software—to defense attorneys during discovery in DWI cases. Despite the court order, the state refused to comply, thus leading to judges suppressing breath test results. Eventually, while the state was able to obtain access to the software by suing the Intoxilyzer’s manufacturer, CMI, prosecutors failed to provide the source code to the defense.
Court rules in favor of defendants
In 2009, in State v. Underdahl, the Minnesota Supreme Court held that DWI defendants are entitled to review a breath test machine’s source code if the state has possession, custody, or control over the code, and if the data was either expressly exculpatory or inculpatory.
Pursuant to Underdahl, the Minnesota Society for Criminal Justice started the “Source Code Coalition” in order to enable defense attorneys to review the source code in DWI cases. The end result was a combination of dismissals and case resolutions. Even though many prosecutors didn’t even use breath test evidence in cases, those who did forced defense attorneys to undertake the long and exhausting process to seek a better resolution for their clients.
In 2010—with the headaches from Intoxilyzer 5000 litigation a far too recent memory—Minnesota contracted with National Patent Analytical Systems (NPAS) for a new breath test—the Datamaster DMT—and the contract included a number of provisions to include discovery wherein the manufacturer was required to provide the source code to a driver if ordered to by a judge. Other aspects of the contract included a survivability provision, assignment clause, and venue requirements so that disputes would be handled pursuant to Minnesota law.
Fraud and forgery concerns
In 2018, problems with Datamaster DMT test results led to questions regarding the accuracy, reliability, and validity of these results, and attorneys in numerous jurisdictions filed motions to review the software—or source code—behind the errors. This led to some police agencies suspending their contract with NPAS.
Michigan State Police mounted a criminal probe into potential fraud and falsification of records by NPAS in calibrating 203 Datamasters in Michigan. Among the allegations were documents asserting that the company performed routine maintenance when this was not the case. The end result was a steep decrease in the machines’ accuracy.
In Minnesota, several courts mandated that police furnish the source code to defendants; however, the company failed to comply with court orders, with NPAS counsel asserting that the routine testing of the instrument itself was adequate to find any anomalies, if they existed.
The ubiquity of the breathalyzer in modern law enforcement requires that data be accurate. In one 2018 case, a district court judge discovered that the Datamaster DMT machines used in Minnesota were falsely rounding up results.
A fine line
Transparency is critical to dispel junk science; however, NPAS safeguards its software so tightly in order to prevent defense attorneys from uncovering fatal flaws in the software. In fact, the company asserts that it is only protecting its intellectual property. The end result is a struggle between these efforts to protect said information and a defendant’s constitutional right to confront the evidence against him/her.
Recently, tens of thousands of breath tests have been invalidated in several states while Minnesota judges are faced with repeated refusal by the Minnesota Department of Public Safety (DPS) to cooperate with court orders for the source code. In its defense, DPS asserts that the agency doesn’t “own, possess, or control” the information, and, therefore, they cannot disclose the data. Instead, per the DPS, the court needs to contact the manufacturer. Ongoing litigation continues in this struggle between a defendant’s due process and a company’s effort to protect its property.