Facing painful accusations of drunk driving, Dale Lee
Underdahl of Minnesota challenged the accuracy of the Intoxilyzer 5000EN
breathalyzer used against him, and demanded to see the source code used in the
The claim launched debates and a lawsuit that escalated all
the way to the Minnesota Supreme Court. The device’s manufacturer, CMI, Inc. of
Kentucky,claimed the source code was proprietary, copyrighted and refused
to comply. To that end, CMI attempted to
block the source code’s release by filing a writ of prohibition, which was
denied by the Minnesota Supreme Court, who said the writ is “an extraordinary
remedy and is only used in extraordinary cases.”
The State of Minnesota specifically commissioned the Intoxilyzer 5000EN model and “all right, title, and interest in all copyrightable material” created “will be the property of the state,” according to the state’s original bid proposal. Furthermore, the proposal also said CMI must provide
the necessary information to “attorneys representing individuals charged with
crimes in which a test with the proposed instrument is part of the evidence,”
to CNet, “seems to include source
On July 26, the Minnesota Supreme Court ruled in Underdahl’s favor,
assuring the discoverability of the devices source code and affirming his right
to its examination. “The problem is, the manufacturer of the thing thinks they
can hold it back and not tell anybody how it works. For all we know, it's a
random number generator,” said Underdahl’s attorney, Jeffrey Sheridan.
The Minnesota Department of Public Safety has expressed
reluctance to forcibly acquire the source code, and according to a department spokesman,
is still considering its response. The department thinks a lawsuit is
unnecessary as the contract stipulates CMI’s cooperation with court orders.
The “source code defense” has been used in a number of other
states with mixed success. Manufacturers, in the interest of guarding their
trade secrets, have rigorously fought against court-ordered scrutiny. In one instance,
judges in Florida’s Seminole County threw
out hundreds of cases involving breath tests because the manufacturer would
not disclose their breathalyzer's source code. However, in another instance a
group of more than 150 suspects, in Florida’s Sarasota County, were
granted access to the machines’ source code, with the judges citing it
was “material to their theory of defense in [their] cases.”
quote: And the time it would take, would be quite expensive.
quote: The source code has little to no bearing on the accuracy of the device.
quote: Increases blood flow to the skin - This causes a person to sweat and look flushed. The sweating causes body heat to be lost, and the person's body temperature may actually fall below normal.