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Intoxilyzer no longer an option in Hubbard County

Hubbard County law enforcement agencies have once again been asked to stop using the Intoxilyzer machine to breath test suspected drunken drivers.

That's because defense attorneys continue to demand access to the instrument's source code, which explains how the machine is programmed.

"I see this simply as a delay tactic by the defense and have every confidence the Intoxilyzer accurately measures a person's BAC (blood alcohol content)," said a memo sent out last week by Hubbard County Attorney Don Dearstyne.

"I cannot let the defense dictate public safety."

Dearstyne's memo followed a request by public defender Jennifer Nelson for the source code in a drunken driving case. Requests for the code have been the object of contentious and protracted litigation in the federal and state court systems.

"We're not looking for any delays," said Rex Tucker, Chief Public Defender for the 7th Judicial District, in charge of the public defenders' efforts to obtain the source code. "We're just trying to get access to the evidence we're entitled to."

Dearstyne had previously requested local law enforcement agencies suspend use of the breathalyzer last year until the legal wrangling ended.

When that appeared to abate last fall, agencies resumed using the machine. Then came a barrage of requests by defense attorneys for the code, nearly bringing the judicial system to its knees.

"We're not trying to bring the judicial system into gridlock," Tucker insisted. "That doesn't benefit our clients. Our clients are served by due process and an effective judicial system."

The company that manufactures the Intoxilyzer, CMI of Kentucky, has fought court orders to turn over the code, maintaining it is a trade secret. Forcing the company to reveal the code would make it vulnerable to competitors, CMI has maintained in refusing to turn it over.

Cases in state courts have stalemated awaiting federal court decisions on the release of the code.

Prosecutors generally file two charges in drunken driving cases, one that charges the driver with being under the influence; the other based on the results of the breath test.

One charge is a civil action that seeks suspension of a driver's license. Dismissing those counts would put potentially dangerous drivers back on the roads too soon, Dearstyne believes.

"The Court has suggested our office dismiss the counts charging out the breath test and proceed on the under influence charge," Dearstyne's memo states. "Although that may be expeditious for the processing of the cases, I do not believe it serves public safety, as some cases may be lost without the use of the alcohol test."

Last summer, U.S. District Judge Donovan Frank issued a ruling that stated in part: "If the State chooses to use the Intoxilyzer's results to convict its citizens and deny them driving privileges, it has some obligation to provide them with the means to analyze and challenge those results."

He ordered CMI to make copies of the source code available to defense attorneys. But that didn't end the legal wrangling over the state's 264 Intoxilyzer 5000EN machines, one of which sits in the Hubbard County jail's booking room.

Defense attorneys banded into a coalition to pool enough resources together to crack the code. Their intent is to hire high-priced experts to delve into the code at CMI's Kentucky headquarters.

The state's public defenders joined the coalition and the fight was on.

"In order to see it, it's cost prohibitive to have our experts go to Kentucky, so we joined the coalition as a statewide agency in order to have these highly qualified individuals evaluate the source code in its native format in Kentucky," Tucker said. "The trade secret issues have made it difficult for the experts to get there."

Meanwhile, since cases were building up awaiting the code, the Minnesota Supreme Court consolidated all implied consent charges into a single prosecution in the state's 1st Judicial District in the metro area.

Because both the prosecutors and defense attorneys must file paperwork to get into the consolidated litigation, Dearstyne said defense attorneys are free to pursue joining in and he will sign the paperwork if they request him to.

But because the cases will be heard in the southern part of the state, he questions whether defense attorneys in the northern region will want to incur the costs and time to travel south. Currently the cases are set for trial in September.

Tucker said the consolidated litigation doesn't address the criminal elements of the DWI prosecutions. It would be unconstitutional to consolidate those cases, he said. Under court rules consolidation can only occur when there are co-defendants involved.

Dearstyne said locally, blood and urine tests are still available to test suspected drunken drivers until the source code arguments are resolved.

Cases pending will be evaluated on an individual basis, he said.

"We'll just discontinue to use the Intoxilyzer," Dearstyne said. "I'm not going to toss cases because I don't think that serves any purpose, especially when we have blood and urine available."

But both prosecutors and defense attorneys don't want to see a variety of conflicting rulings on the reliability of the Intoxilyzer coming from each district court.

Until all the legal wrangling over the machine is resolved, it is gathering dust on a counter in the jail's booking room.