In a recently reported case, the state Supreme Court of Minnesota recently handed down a rather ground-breaking ruling regarding the use of the “Intoxilyzer” - a version of the “Breathalyzer.” The defense argued that it should have the right to examine the source code of the Intoxilyzer to determine whether the readings it gives are valid. The court agreed, and ordered the Prosecution to hand over the information. The order is problematic, however, as the company that makes the Intoxilyzer claims that the source code is a trade secret and does not want to hand it over. This puts basically every pending and future DUI prosecution based on evidence obtained using the Intoxilyzer into jeopardy.

This is a very interesting turn of events in the world of DUI, and I’m surprised it hasn’t been an issue previously. The right of a Defendant to challenge the evidence against him/her is the cornerstone of our legal system, and it would seem that a defense attorney would attack the Breathalyzer directly.

The interesting thing from this case will be the fallout and how that is dealt with. In the interim, the state could resort to urine or blood samples, which of course raise their own problems of privacy rights, and whether police officers will be adequately trained to perform such procedures. In that regard, the Breathalyzer might be the more desirable option for Defendants. But companies making breath-alcohol devices are now in a serious bind: either disclose their source code and risk exposing their trade secrets or keep the code secret, but render their device inadmissible in court. Breathalyzers have pretty much no use to anyone other than the police, and if the police cannot use the evidence obtained from them in court, I don’t see such devices being viable any longer.

What can be done is what is done with any trade secrets case: allow the defense attorneys to see the code and/or their experts or a neutral expert provided by the court. This is often the way trade secrets cases are tried in civil court when two companies are going at each other. And, as you might imagine, having to do Discovery in this fashion is VERY cumbersome and expensive. Possibly to the point where only the wealthiest DUI defendants will have the means of pursuing this defense and/or it will be too costly for the state to pursue every such case.

But we’ll just have to see, won’t we?