I have written previously on this blog about on-going litigation between DUI lawyers in various states and the manufacturer of the Intoxilyzer 5000 and other alcohol breath sensor equipment. At issue is the source code of these machines, which DUI defense counsel is calibrated to measure an average sized man. The machines take no account of different sized individuals or possible differences in alcohol metabolism in females.
The manufacturer does not want to release its source code, claiming that this information is a valuable business trade secret. Defense lawyers argue that if this equipment is used to convict their clients then they have a right to see the source code.
Georgia trial courts have not given us a definitive answer. Georgia DUI lawyer George Creal cites a recent case on his blog – Holowiak v. State, where the Court of Appeals sidestepped the issue but refused to order CMI (the manufacturer of the Intoxilyzer 5000) to reveal its source code.
In any case, you may be wondering how these machines work in a general sense. The well known web site “How Stuff Works” has a easily understandable and thorough explanation entitled How Breathalyzers Work. If you and your lawyer plan to challenge a DUI charge by attacking the technology of the equipment used to determine blood alcohol levels, the How Stuff Works article is a good starting point for your research.
Filed under Intoxilyzer 5000 issues by on Jan 28th, 2009. Comment. 
San Diego DUI lawyer Rick Mueller reports on his California DUI Law Center blog about a Kentucky case involving a defendant’s request to inspect the source code for a DUI Intoxilyzer 5000. The defendant argued that the State should not be allowed to introduce evidence from the Intoxilyzer if the defense was not allowed to examine how the Breathalyzer worked.
This defendant’s argument is known as a "black box" argument – in other words, a defendant should not be convicted based on the readings from a black box that has unknown internal processes.
The trial judge denied the defendant’s motion, as did the circuit court of appeals. However, the second level appeals court – the Kentucky State Court of Appeals – reversed the prior decisions and granted the defendant’s motion. The apellate court held that the defendant could examine the Breathalyzer source code as long as reasonable confidentiality procedures were followed. Presumably CMI, the company that makes the Intoxilyzer 5000, does not want its source code distributed on the Internet.
I wonder, however, how long the Intoxilyzer source code could remain confidential if lawyers throughout the country continue to convince trial judges and appellate courts to allow for review of the source code. I also wonder what an analysis of the source code will reveal.
In the past I have seen arguments that breath machine results are faulty because the machines are calibrated based on a 180 pound male. It will be interesting to see what other arguments can be made.
Filed under Intoxilyzer 5000 issues by on Feb 2nd, 2008. Comment.
Joshua Topolsky of the Engaget blog reports that the Minnesota Supreme Court will hear arguments about whether the State of Minnesota and/or the manufacturer of the Intoxilyzer 5000 machine must turn over the source code that operates the Intoxilyzer equipment. In discovery motions, the defense had demanded the source code but both the State of Minnesota and manufactgurer CMI corporation have refused to release the code.
Lower courts in Minnesota and elsewhere have dismissed charges in DUI cases because the source code was not released, although other courts have refused to dismiss cases on this basis. Now, it appears that the Minnesota Supreme Court will be making law on this subject – a hearing is scheduled for September 19th.
Has anyone had any success with the "source code" argument here in Georgia? If so, write us with the details.
Filed under Intoxilyzer 5000 issues, Pre-trial actions by on Sep 5th, 2007.
In a gesture of appreciation to his fellow criminal defense lawyers, noted Marietta DUI lawyer Guy Sharpe has published his Motion for Full Information on the Intoxilyzer 5000. Guy states that he frequently receives calls about this Motion and he has released it to the DUI defense community as a "thank you" to the many DUI and criminal defense lawyers throughout the State who have generously shared their expertise with him. This Motion is for the use of criminal defense lawyers only and carries with it no warranties or guarantees of any kind. Attorneys who use or modify this Motion do so at their own risk.
Filed under Georgia Courts, Intoxilyzer 5000 issues, Pre-trial actions by on Jun 22nd, 2006. 3 Comments.
