Jun 1, 2009 6:54 pm US/Central
Settlement Reached Over Intoxilyzer Software
MINNEAPOLIS (AP) ―
-
-
The Intoxilyzer 5000 machine is used by law enforcement agencies throughout Minnesota. It has been at the center of a lengthy battle with defense attorneys who are trying to get access to its source code.
CBS
The state of Minnesota and the company that manufactures the Intoxilyzer alcohol breath-test machine have reached an agreement over access to the software that makes the device work.
According to the agreement filed Monday in U.S. District Court, CMI of Kentucky will make the software, known as the source code, available in its "native electronic format" at its company headquarters in Owensboro, Ky. The company will also make printed copies of the source code available in Minnesota.
The state sued CMI for access to the Intoxilyzer's source code after some defense attorneys in criminal drunken-driving cases and civil license-revocation cases asked to see it so they could ensure the machine was accurate. Some judges said the software could be used as evidence, but prosecutors couldn't easily produce it because CMI argued it was a trade secret.
As a result, information from some breath alcohol tests couldn't be used in court. Some law enforcement officers stopped using the Intoxilyzer, and relied instead on blood or urine tests, which took longer to analyze.
The settlement filed Monday still needs approval of U.S. District Judge Donovan Frank, who rejected an earlier settlement, saying it was overly vague.
Michael Campion, Department of Public Safety commissioner, said he expects Frank will approve the latest agreement.
"We're very confident that this settlement will be accepted by the federal judge and we're very, very pleased that we now have the opportunity to give defense attorneys everything they asked for," Campion said. "The settlement should finally put to rest the issue of the Intoxilyzer's reliability."
Defense attorneys say the proposed settlement still falls short.
"It still seems like the same old, same old to me," said Marsh Halberg, a defense attorney who has been following the issue.
Under the settlement, a portion of the source code created specifically for Minnesota would be given to the state, but the rest of the software would remain the exclusive property of CMI.
If the deal is approved, CMI would agree to make the complete source code available in electronic form to authorized defendants, attorneys, or their experts at its company headquarters. The information would remain confidential, and all parties would have to sign nondisclosure agreements.
If any information is copied onto a hard drive, "the reviewer must agree to destroy the computer's hard drive at CMI in the presence of CMI's representative, or to leave the computer's hard drive at CMI at the conclusion of the review," the agreement says.
CMI also would make copies of the source code available in printed form in Minnesota -- with language concerning network security and passcodes left out. The printed information would be returned to CMI at the end of the case for which it was provided.
All electronic and printed copies of the source code would remain the property of CMI, the agreement says. CMI also would agree to provide its own experts, affidavits or other information to help the state defend the reliability of the Intoxilyzer, and would contribute up to $50,000 for independent review or other resources to defend the source code.
"It's always been CMI's goal to support the state of Minnesota's breath alcohol testing program and its law enforcement professionals in a way that also provides reasonable protection for CMI's proprietary intellectual property," said Bill McNab, an attorney for CMI. "We believe this settlement accomplishes that goal."
The agreement came as a "complete surprise" to defense attorney Charles Ramsay, who represents several defendants in drunken-driving cases. Ramsay, who has intervened in the federal case, wrote to Frank and a magistrate judge Monday, objecting to the "purported settlement."
Ramsay said he wasn't aware settlement talks had been taking place.
"They did this behind our back. ... This was a secret deal," Ramsay said.
-------
The Bureau of Criminal Apprehension tested the Intoxilyzer 5000EN to see if it was accurate even before police started using it. The BCA has also done follow up tests ever since, and it says the machine works correctly.
(© 2009 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)
Click to enlarge
MN Episcopal Bishop Elected For Oregon Diocese 15 mins ago
Stumble It!
