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STATE OF MINNESOTA IN SUPREME COURT A07-2293 A07-2428

Court of Appeals

Meyer, J. Concurring in part, dissenting in part, Page and Anderson, Paul H., JJ.

State of Minnesota, Respondent, vs. Dale Lee Underdahl, Appellant, Timothy Arlen Brunner, Appellant. ________________________ Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Jessica Bierwerth and Helen Brosnahan, Assistant Dakota County Attorneys, Hastings, Minnesota, for respondent. Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, Minnesota, for appellant Dale Lee Underdahl. Derek A. Patrin, Meaney & Patrin, P.A., Eden Prairie, Minnesota, for appellant Timothy Arlen Brunner. ________________________ Filed: April 30, 2009 Office of Appellate Courts

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SYLLABUS 1. Minnesota Rule of Criminal Procedure 28.04 requires the State to show

critical impact in all pretrial appeals and there is no exception for an appeal from a discovery order. 2. District court discovery orders met the critical impact test because the

exclusion of the breath test results will significantly reduce the likelihood of a successful prosecution on a charged offense of driving while impaired. 3. Under Minn. R. Crim. P. 9.01, subd. 2(3), it was an abuse of discretion for a

district court to order discovery of the source code of the Intoxilyzer 5000EN when a defendant did not submit any evidence on how the source code may relate to his guilt or innocence; however, it was not an abuse of discretion for a court to order discovery of the source code to a defendant who submitted evidence that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and would relate to his guilt or innocence. 4. It was not an abuse of discretion for district courts to find that the source code

was in the possession or control of the State under Minn. R. Crim. P. 9.01, subd. 2(1). Affirmed in part, reversed in part, and remanded. OPINION MEYER, Justice. Dale Lee Underdahl and Timothy Arlen Brunner (appellants) each sought discovery of the complete computer source code for the Minnesota model of the Intoxilyzer 5000EN in their separate driving while intoxicated (DWI) criminal 2

prosecutions. The district courts in both cases ordered the State to produce the computer source code within 30 days, or the courts would dismiss certain charges and find that the breath test results were not admissible. The State appealed the discovery orders, and the court of appeals consolidated the actions and reversed both orders for production. State v. Underdahl, 749 N.W.2d 117, 121 (Minn. App. 2008). We granted appellants petitions for review concerning the district courts discovery orders, and also asked the parties to brief two additional issues: (a) whether the State is required to show critical impact, under Minn. R. Crim. P. 28.04, in its pretrial appeal of the district court discovery orders, and (b) whether the State has shown that the district courts pretrial orders at issue in these cases will have a critical impact on its ability to prosecute the defendants successfully. We answer both critical impact

questions in the affirmative. Further, we affirm the court of appeals decision to reverse the production order in appellant Underdahls case. With respect to appellant Brunner, however, we reverse the court of appeals and reinstate the district courts order for State production of the complete computer source code for the Minnesota model of the Intoxilyzer 5000EN. State v. Underdahl On February 18, 2006, Dale Lee Underdahl was stopped on suspicion of driving while intoxicated and was arrested after performing poorly on field sobriety tests and failing a preliminary breath test. Underdahl agreed to a breath test performed with the Intoxilyzer 5000EN, the most recently approved breath-test instrument for the State of

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Minnesota.1 The Intoxilyzer 5000EN revealed an alcohol content of .23. Underdahl was charged in Dakota County District Court with third-degree driving while impaired (blood alcohol concentration of .20 or more), Minn. Stat.

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