In re Source Code Evidentiary Hearings in Implied Consent Matters, A11–0560.
| Decision Date | 07 August 2012 |
| Docket Number | No. A11–0560.,A11–0560. |
| Parties | In re SOURCE CODE EVIDENTIARY HEARINGS IN IMPLIED CONSENT MATTERS, In re Source Code Evidentiary Hearings in Criminal Matters. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
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.
Jeffrey S. Sheridan, Marsh J. Halberg, Pamela King, Derek A. Patrin, Lee M. Orwig, Source Code Coalition, Eagan, MN, for appellants.
Lori Swanson, Attorney General, David S. Voigt, Deputy Attorney General, Kristi Nielsen, Assistant Attorneys General, St. Paul, MN, for respondent Commissioner of Public Safety.
Mark J. Schneider, Jeffrey D. Bores, Chestnut Cambronne PA, Minneapolis, MN, for respondent State of Minnesota Prosecution Liaison Counsel.
David M. Aafedt, William A. McNab, Winthrop & Weinstine, P.A., Minneapolis, MN, for amicus curiae CMI of Kentucky, Inc.
This appeal involves a statewide challenge to the reliability of Intoxilyzer 5000EN test results based on alleged defects in the Intoxilyzer 5000EN source code.1 The Intoxilyzer 5000EN is a testinginstrument manufactured by CMI, Inc. that uses infrared absorption spectroscopy to measure the breath alcohol concentration of subjects who provide breath samples, and test results from the Intoxilyzer are routinely admitted as evidence in civil implied consent and criminal driving while impaired (DWI) cases. Following the State's disclosure of the Intoxilyzer 5000EN source code, drivers across Minnesota began challenging the reliability of Intoxilyzer 5000EN test results based on alleged defects in the source code. We assigned a single district court to decide these challenges. After an evidentiary hearing, the district court ruled that: (1) Intoxilyzer 5000EN instruments that report a numerical value for measured breath alcohol are reliable, (2) challenges to those instruments, which were premised on the source code defects alleged at the evidentiary hearing, were overruled and evidence relating to those challenges would not be allowed at the individual appellants' trials or hearings, and (3) Intoxilyzer 5000EN instruments that report a “deficient sample” while running the 75–0240 version of the source code (“240 software”) are unreliable unless there is other evidence or observations that demonstrate the deficient sample was not the result of a source code error.2 Because we conclude that the district court afforded appellants ample opportunity to present evidence challenging the reliability of Intoxilyzer 5000EN instruments and that the record and existing law support the district court's evidentiary rulings, we affirm.
History of source code proceedings
For many years, the reliability of Intoxilyzer 5000EN instruments went unchallenged, and existing rules and statutes provide that Intoxilyzer 5000EN test results are admissible into evidence without antecedent expert testimony. 3SeeMinn. R. 7502.0425, subp. 1 (2011); Minn.Stat. § 634.16 (2010). In 2006, a driver, Dale Underdahl, filed a motion seeking discovery of the complete computer source code for the Intoxilyzer 5000EN instrument, arguing that access to the source code was necessary to determine whether the source code affected the reliability of the reported test result in his implied consent case. Underdahl v. Comm'r of Pub. Safety, Dakota County Court File No. 19–C1–06–6710. The Dakota County District Court issued an order granting Underdahl's discovery motion. The Commissioner of Public Safety (“Commissioner”) petitioned the court of appeals for a writ of prohibition to prevent enforcement of the order granting Underdahl's discovery motion. The court of appeals denied the Commissioner's petition for a writ of prohibition. In re Comm'r of Pub. Safety, No. A06–1000, Order at 2–3 (Minn.App. filed July 18, 2006). Concluding that the Commissioner failed to establish a need for a writ of prohibition, we affirmed the court of appeals' denial of the Commissioner's petition.4In re Comm'r of Pub. Safety, 735 N.W.2d 706, 713 (Minn.2007) ( Underdahl I ). The State subsequently disclosed the Intoxilyzer 5000EN source code to Underdahl. Following our decision in Underdahl I, requests for discovery of the source code became part of standard litigation strategy in criminal DWI and implied consent proceedings.5
In response to the many requests for discovery, the Commissioner filed a motion pursuant to Minn. R. Gen. Prac. 113.03, for assignment, to a single judge or a panel of judges, of all pending and future implied consent cases in which the petitioner challenged the reliability of Intoxilyzer 5000EN instruments based on allegedly defective source code. The Commissioner contended that assignment to a single judge would eliminate the risk of inconsistent rulings, provide a more efficient process and forum for adjudication of the source code challenges, and thereby preserve the resources of both the parties and the judiciary.6 In addition, 18 municipal prosecuting authorities 7 moved for assignment, to a single judge or panel of judges, of all criminal DWI cases pending in their jurisdictions, together with the implied consent cases, that involved Intoxilyzer 5000EN source code challenges.8
We determined that assignment of the issue to a single judge would further the interests of the parties and the judiciary. Consequently, on January 11, 2010, we assigned First Judicial District Court Judge Jerome B. Abrams to “administer, hear, and decide all pretrial matters concerningchallenges to the reliability of Intoxilyzer 5000EN results based on the source code of the instrument” in (1) all pending and future civil implied consent cases in which a party challenges the reliability of Intoxilyzer 5000EN results based on the source code of the instrument; and (2) all pending and future criminal DWI cases in which (a) a party challenges the reliability of Intoxilyzer 5000EN results based on the source code of the instrument and (b) both the prosecuting authority and the defendant provide written notice to Judge Abrams for their consent to this assignment.
The statewide assignment to the district court consists of three groups of identifiable cases. The first group consists of all pending and future implied consent matters in which the source code challenge is raised. The second group is all pending and future criminal DWI cases in which the source code issue is raised and “both the prosecuting authority and the defendant provide written notice to [the district court] of their consent to th[e] assignment.” The third group includes all of the criminal DWI cases listed in an addendum to the January 11, 2010, assignment order so long as the defendant was not represented by a public defender. Since this assignment order was issued, no party has objected to it or to the implementation orders promulgated by the district court.
Appellants' motions
After several months of discovery, appellants 9 filed a pretrial motion to exclude all test results produced by the Intoxilyzer 5000EN instrument in their individual trials or hearings. Appellants argued that defects in the Intoxilyzer 5000EN source code affected the reliability of both: (1) 5000EN instruments that reported a numerical value for measured breath alcohol, and (2) 5000EN instruments that reported a deficient breath sample. In the event the district court denied their motion to exclude the Intoxilyzer 5000EN test results, appellants alternatively moved for a pretrial order allowing them to present the trier of fact in their individual cases with expert testimony that the alleged defects in the source code affected the precision of the reported test results.
In response to appellants' pretrial motions, the district court held an evidentiary hearing beginning on December 8, 2010, and concluding on December 23, 2010. The district court stated that the proceedings were to provide a resolution of the “admissibility or inadmissibility of results reported by Minnesota's Intoxilyzer 5000EN fleet as a result of the Source Code of the instrument,” and “whether challenges related to the reliability of Intoxilyzer 5000EN results based on the Source Code of the instrument should be permitted.” Throughout the hearing, the district court reminded the parties that it was conducting an evidentiary hearing pursuant to Minn. R. Evid. 104, which provides that “[p]reliminary questions concerning ... the admissibility of evidence shall be determined by the court....”
At the evidentiary hearing, a report prepared by Computer Forensic Services, Inc. (“CFS”), was admitted into evidence. CFS was the company retained by appellants to analyze the source code of the Intoxilyzer 5000EN. After conducting a thorough analysis of the source code, CFS concluded that “the Intoxilyzer 5000EN...
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