Breathalyzer maker agrees to give state access to code

The state of Minnesota and the company that makes Intoxilyzer -- the most widely used machines to test for alcohol during drunk driving arrests -- have reached an agreement over access to software that makes the machines work.

The settlement allows defendants in criminal DWI cases and petitioners in civil consent cases in Minnesota to have full access to the Intoxylizer source code at CMI headquarters in Kentucky.

The settlement will also provide defendants and their lawyers access to a printed, hardbound copy of the source code in Minnesota.

The state sued for access to the software after some defense attorneys asked to see it so they could ensure the Intoxilyzer worked properly. That posed a dilemma for prosecutors because they did not have the source code. CMI argued it was a trade secret.

"We are very pleased that we have given the defense attorneys everything they need to analyze the Source Code," Department of Public Safety Commissioner Michael Campion said in a statement Monday. "The settlement should finally put to rest the issue of the Intoxilylzer's reliability. Law enforcement needs the Intoxilyzer 5000EN to keep drunk drivers off our roads."

The settlement agreement is contingent upon the approval of Minnesota Federal District Court Judge Donovan W. Frank. A hearing on the matter has been scheduled for June 11, 2009.

In 2007, there were 38,699 impaired driving incidents that occurred in Minnesota. The Intoxilyzer was used in approximately 24,000 of these cases, according to the Department of Public Safety.

In April, the state Supreme Court said people charged with drunk driving have a right to a breathalyzer's source code, but only if they can prove it will aid their defense. The ruling stemmed from the DWI charge against Timothy Brunner who wanted the source code to challenge the validity of his blood alcohol test.

Brunner provided evidence that analyzing the source code could reveal the Intoxilyzer's reliability and whether he was guilty of the charges.

The same court, however, ruled against another man who also sought the device's source code. The court said Dale Underdahl failed to show exactly how the source code could be related to his defense or why the code was likely to contain information related to his case.