Judge approves breathalyzer settlement

A federal judge has approved the latest settlement between the state of Minnesota and the maker of a breathalyzer device, which police widely use to test alcohol levels in suspected drunk drivers.

The Minnesota Society of Criminal Justice filed a friend-of-the-court brief asking U.S. District Judge Donovan Frank to reject the settlement between the state and Kentucky-based CMI over access to the "Intoxilyzer" computer source code.

Judge Frank wrote that the latest settlement means "Minnesota litigants will have reasonable and, in fact, unprecedented access to the Source Code for the Intoxilyzer, while CMI's intellectual property rights will be protected."

The state of Minnesota assumed that the breath-testing machine, called the Intoxilyzer 5000, produced accurate blood-alcohol readings. But those facing DWI convictions based on that machine's results wanted proof its readings were reliable.

That proof, they argued, was located in the machine's computer program source code, which analyzes a person's breath for alcohol.

In April 2009, Minnesota's Supreme Court ruled that motorists charged with DWIs have a right to that source code if they can prove it would aid in their defense.

Defense attorneys sued the state of Minnesota for access to the device's code, but the state didn't have it. So the state asked the device's maker, CMI, for the code.

CMI initially declined, saying the code was a trade secret. But under a settlement in the case, CMI agreed to make the code available in Minnesota in a printed, hardbound version. The full electronic version of the code will be available at CMI's headquarters in Kentucky.

CMI attorney David Aafedt in Minneapolis says the company hopes the judge's action will end the dispute over the source code.

"The settlement agreement and the consent judgment will allow CMI to protect its valuable intellectual property and trade secrets, but it will also allow Minnesota litigants who seek access to the source code to review it," said Aafedt.

The Minnesota Society of Criminal Justice, a group of about 50 defense attorneys, argued the settlement doesn't provide "meaningful" access to the code because CMI doesn't make the electronic version available in Minnesota, only a paper version.

The group says "such a copy would be of minimal value and practically useless for analytical purposes." A spokesman for the group did not immediately return MPR's phone call seeking comment.

Judge Frank ruled that the agreement contains a provision requiring good-faith negotiations, and if Minnesota litigants believe they need greater or different access to the code and cannot resolve the dispute, they can seek an order from the court.

He also ruled that his order does not infringe on the authority of Minnesota state courts' authority to conduct subsequent litigation, and does not mandate that a state court follow the process set forth in the order.

The state and CMI had reached an earlier settlement in the case in 2008, but Frank rejected it in part because CMI's access to the code was too restrictive.

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