Once again, my interest in criminal law and my interest in technology have come together in a brewing legal controversy. The issue is whether a DWI defendant who has submitted to a breath test for alcohol has a right to access the "source code" of the breath analysis machine. The Minnesota Supreme Court, in State v. Underdahl, available here, just ordered that a particular defendant be granted such access. Let's start with some background. Breath analysis machines have been around for many years. There are actually several different companies that make such instruments. Most of the reported cases I've seen involve the Intoxilyzer 5000, manufactured by CMI, Inc., though my understanding is that the machine currently in use in North Carolina is the Intox EC/IR II, manufactured by Intoximeters, Inc. I believe that both machines work by shooting infrared rays through a breath sample and looking for the distinctive refraction caused by alcohol in the breath. (Readers who are versed in DWI, correct me if I'm wrong.) [Update: a knowledgeable reader tells me that the Intoxilyzer 5000 works by shooting infrared rays through a breath sample and looking for absorption, not refraction, while the Intox EC/IR II measures alcohol using a "fuel cell."] Some defendants who have submitted to breath analysis testing and who have received readings in excess of the legal limit have argued that the machines are defective, and specifically, that the source code, or programming, of the machine is flawed. (This is similar to the arguments some have [...]
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