Lawsuit involves breath test machine, By LISA KACZKE, Staff Writer

Local law enforcement uses machine

Local law enforcement officials use a breath test machine that is involved in a lawsuit between Minnesota and the makers of the machine.
The lawsuit was filed in U.S. District Court in March by Commissioner of Public Safety Michael Campion for the state of Minnesota against CMI of Owenboro, Ky., the makers of the Intoxilyzer 5000EN. The lawsuit involves the source code of the machines, and does not question the accuracy of the results from the breath test.
The source code is computer programming language that determines what programming is loaded into the Intoxilyzer, according to the Bureau of Criminal Apprehension.
In addition to the state’s lawsuit, cases involving impaired driving offenses in the state are in jeopardy because of the source code.
The state alleges in its lawsuit that hundreds of people charged with impaired driving offenses have demanded the source code and several district courts have ordered the source code to be turned over. CMI has not turned over the source code, alleging it is highly confidential information, which has placed impaired driving cases in jeopardy, according to the lawsuit.
The BCA has a fleet of more than 200 Intoxilyzer breath test machines that are used by Minnesota law enforcement agencies. The BCA stated in January in response to several court challenges to the breath test machine that the source code is “irrelevant and unnecessary” in determining the accuracy of the measure of alcohol concentration of a person’s breath.
Both the Falls Police Department and the Koochiching County Sheriff’s Office are continuing to use the machine.
Falls Police Chief Chris Raboin said he is waiting until he hears from the League of Minnesota Cities or the Minnesota Chiefs of Police and Sheriffs’ Associations before he would stop the department’s use of the Intoxilyzer 5000. The department also conducts blood and urine tests following the breath test, depending on the situation, Raboin said.
Sheriff Brian Youso said some of the officers requested blood and urine tests more frequently in light of the lawsuits.
The breath test is still valid, Raboin said, noting that law enforcement officers are trained in how to use the machine, not the technology of the machine.
In 2006, 35,000 breath tests and 5,000 blood and urine tests were administered in Minnesota, according to the BCA.
Many law enforcement agencies in Minnesota have stopped using the Intoxilyzer machines because of the lawsuits and are now relying on blood and urine tests only, which is straining the BCA laboratory resources and budget, according to the lawsuit. The state may also be forced to replace all of its breath tests machines and retrain law enforcement officers who are certified Intoxilyzer operators, which would cost an estimated $3 million, according to the lawsuit.
The state began receiving requests for the source code beginning in 2006 and one litigant in the state has received access to the source code, according to the lawsuit.
In a case decided last week, a defendant's source code request was denied by the Court of Appeals.
Youso called it “ridiculous” that the code is connected to the validity of the test by defense attorneys in court. The attorneys are trying to find a loophole, according to Youso. In last week’s case, the decision was in favor of law enforcement and was a “step in the right direction for law enforcement,” Youso said.