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STATE OF MINNESOTA IN SUPREME COURT A11-0560

Scott County In Re: Source Code Evidentiary Hearings in Implied Consent Matters, In Re: Source Code Evidentiary Hearings in Criminal Matters.

Anderson, G. Barry, J. Dissenting, Page, Anderson, Paul H, Meyer, JJ. Filed: June 27, 2012 Office of Appellate Courts

_________________________________ Jeffrey S. Sheridan, Marsh J. Halberg, Pamela King, Derek A. Patrin, Lee M. Orwig, Source Code Coalition, Eagan, Minnesota, for appellants. Lori Swanson, Attorney General, David S. Voigt, Deputy Attorney General, Kristi Nielsen, Assistant Attorneys General, St. Paul, Minnesota, for respondent Commissioner of Public Safety; and Mark J. Schneider, Jeffrey D. Bores, Chestnut Cambronne PA, Minneapolis, Minnesota, for respondent State of Minnesota Prosecution Liaison Counsel. David M. Aafedt, William A. McNab, Winthrop & Weinstine, P.A., Minneapolis, Minnesota, for amicus curiae CMI of Kentucky, Inc. ____________________________________ SYLLABUS 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

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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. Affirmed. OPINION ANDERSON, G. Barry, Justice. 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

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The source code is a human-readable representation of instructions that are performed by a computer. The source code for the Intoxilyzer 5000EN is over 1,113 pages of printed material. It is comprised of C code and Assembly code for the two microprocessors used in the Intoxilyzer 5000EN, the 8051 processor (referred to as the slave processor) and the Z80 processor (referred to as the master processor). When the code is compiled or assembled and linked, it is converted into a form that is executable by the microprocessors. The microprocessors execute the instructions contained in the (Footnote continued on next page.) 2

Intoxilyzer 5000EN is a testing instrument 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 750240 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

(Footnote continued from previous page.) converted source code to perform the instrument functions. The master processor is responsible for the basic instrument operations like displaying readouts. The slave processor is primarily responsible for receiving the analog output or measurements and performs most of the calculation or data analysis. The aspects of software function performed by the slave processor are particularly relevant to these proceedings.
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A "deficient sample" is a reported test result for a breath sample that does not meet a minimum breath volume of 1.1 liters and/or level slope requirements within a 4(Footnote continued on next page.) 3

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. 3 7502.0425, subp. 1 (2011); Minn. Stat.

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