The battle over obtaining the source code that runs the intoxilyzer machine used to prosecute DWI  cases in Minnesota continues to unfold. Marsh Halberg of our office has been designated one of the Lead Trial Attorneys on this matter. Lee Orwig of our office has been selected the Liaison Defense Attorney by Judge Abrams of the First District to coordinate matters. Attached is a November 2009  Pioneer Press article discussing this issue.

Pioneer Press November 5,2009

Judge agrees to set hearing on DWI test device

By Frederick Melo
fmelo@pioneerpress.com

While Minnesota’s chief justice mulls whether to appoint a single judge statewide to hear legal arguments over the reliability of the most common device that cops use to test drunken drivers, a judge in Dakota County said Wednesday that his judicial district would forge ahead.

In a three-hour hearing in a courtroom packed by dozens of defense attorneys, Dakota County District Judge Jerome Abrams said he would issue a written order to schedule hearings.

At issue is the reliability of the Intoxilyzer 5000EN, the device used by the Minnesota State Patrol and law enforcement throughout the state to test drivers suspected of driving while impaired. Defense attorneys long have questioned whether the machine accurately measures a person’s blood-alcohol level, and they sought its “source code,” the computer program that makes the machine go.

But when judges in some cases ordered that the state turn over the source code, it sparked a lengthy legal battle. The state said it couldn’t turn over the code because it didn’t have it, and the machine’s maker, Owensboro, Ky.-based CMI Inc., refused to provide it.

CMI said the code was a business secret. Without access to the code, defense attorneys argued they were unable to, in essence, cross-examine the key prosecution witness — albeit a mechanical one — and some judges agreed, throwing out the cases.

Other judges ruled against defense attorneys, though, so defense attorneys and prosecutors alike sought a uniform ruling that could apply statewide. In an eventual federal court settlement, CMI agreed to let a team of outside computer experts hired by defense attorneys examine the code.

At Wednesday’s hearing, a coalition of defense attorneys told Abrams that they’d hired a firm, Computer Forensics Services, of Minnetonka, to review the source code. Under the federal court settlement, the firm’s experts are allowed to analyze the code only at CMI’s headquarters, and they predict it could take two to three months.

Abrams said he would schedule a hearing for next spring after lawyers for the state review the analysis. The hearing could last three weeks.

“We’ll have one mega-hearing where we’ll bring these people in and fight over whether this is a good machine or it isn’t,” said

Marsh Halberg, a defense attorney representing the Minnesota Society for Criminal Justice. “Most private defense attorneys are in favor of having one hearing statewide.”

The 1st Judicial District covers Dakota, Carver, Scott, Goodhue, LeSueur, McLeod and Sibley counties. Abrams said the district has 531 pending criminal and civil cases hanging on the Intoxilyzer issue.

There are nine other judicial districts across the state, and defense attorneys have said they couldn’t guess how many cases are involved statewide.

“If you’ve got 530 in the 1st District, and Hennepin and Ramsey are bigger than that, it’s going to be thousands of cases,” Halberg said. “Common sense would dictate that you wouldn’t want to have hundreds of hearings.”

The imbroglio primarily involves criminal cases in which motorists have been charged with driving while impaired. But it also involves civil cases in which people who’ve had their driver’s license taken away for refusing the Intoxilyzer test have sued the state in an attempt to get their licenses back.

Some cases have been in legal limbo for three years as they await a definitive ruling on the source-code issue.

“I have a half-dozen (clients) in the 1st Judicial District that are affected by this,” said David Ayers, an attorney in Mendota Heights who also was at the hearing.

Halberg conceded afterward that coordinating so many cases, defendants, defense attorneys, prosecutors and judges wasn’t easy.

“We’re herding cats here,” he said.

Toward that end, Ramsey County District Judge Kathleen Gearin, chief judge of the 2nd Judicial District, asked Minnesota Supreme Court Chief Justice Eric Magnuson in September whether he could appoint a single judge statewide to hear pretrial evidentiary issues involving the Intoxilyzer.

But as the judge noted, the problem with such an arrangement is that while Minnesota statutes allow for the appointment of a single judge to handle civil cases involving the same issue, there is no similar mechanism in criminal cases. Rex Tucker, the state’s chief public defender, has argued that a single “evidentiary” court raises constitutional issues and concerns about a defendant’s due process rights.

He’s also noted it conflicts with the Rules of Criminal Procedure, which guides how criminal cases are conducted in state courts.

On Oct. 23, Supreme Court Commissioner Richard Slowes replied to Gearin on Magnuson’s behalf, telling her that the issue of appointing a single judge would have to be worked out.

“I recognize that there are likely many hundreds of cases potentially affected by such an appointment and joining all such cases in a request/motion may not be practicable,” Slowes wrote.

“I realize this is a significant logistical issue for the courts and litigants,” he told Gearin.

The Crow Wing County Attorney’s Office dismissed gross misdemeanor charges against Lee Orwig’s client for violating Minn. Stat. 171.09, which prohibits being in physical control of a motor vehicle while in violation of a no-alcohol restriction on a driver’s license.  Orwig argued the positive PBT (roadside breath test) result was unreliable, that his client had not consumed alcohol, that the arresting officers’ request that his client submit to a PBT was improper and that the officers had improperly expanded the scope of the search.  

DWI cases where a breath machine tested the driver’s alcohol level are under close scrutiny. Our office continues to advocate for access to the software program called the “source code.” Several recent Minnesota Supreme and Court of Appeals decisions have ruled favorably on behalf of the defense. Click the link to read a recent AP article http://kstp.com/article/stories/s907320.shtml?cat=1 that outlines the issue with references to Marsh Halberg of our office. For further background on the source code scroll down on this Halberg News Section to “Source Code Litigation.

Following a three day jury trial in Hastings, Dakota County, firm partner, Brent S. Schafer, obtained acquittals for his client who was charged with one felony count of Domestic Assault-Strangulation and one misdemeanor count of Domestic Assault.  The State called six witnesses during the trial.  Mr. Schafer’s client testified on his own behalf.  At the close of evidence, Mr. Schafer requested the court add one count of misdemeanor Disorderly Conduct to the complaint.  The court granted his request.  Schafer argued to the jury that his client was not guilty of the assault charges but rather was simply disorderly while in a public place.  The jury agreed and found Mr. Schafer’s client not guilty of the felony and misdemeanor assault charges.  The jury did find his client guilty of being Disorderly.  Mr. Schafer’s client was sentenced to pay a fine.

Following a court trial, firm partner Brent S. Schafer successfully argued for the return of his client’s vehicle that was seized and held for forfeiture as a result of a 2^nd Degree DWI charge.  Schafer asserted the “innocent owner” defense, arguing that the registered owner of the vehicle was unaware that the vehicle was being operated in violation of the DWI laws.  Schafer introduced evidence and testimony from the registered owner during the trial.  Ultimately, the Judge agreed with Schafer’s argument and order the vehicle to be returned to the registered owner without cost.

Halberg Criminal Defense Partner, Brent Schafer, succesfully defended his client of DWI and Failure to Report and Accident  in Alexandria, Doulglas County, MN.   Following a two day jury trial, the jury agreed with Mr. Schafer that his client, although a .11 had consumed enough alcohol after arriving home to place hime over the legal limit of .08.  The jury also acquitted his client of the charge of Failure to Report an Accident, finding that his client took appropriate steps the following day to report the incident.

We are pleased to announce that affective January 1, 2009, Lee Orwig has joined Halberg Criminal Defense as our sixth attorney practicing exclusively in the area of criminal defense. To learn more of Mr. Orwig’s background, click here.

Over the past two years numerous motions and rulings have come forward regarding the need to disclose the source code (software) of the breath machine used to test the alcohol of individuals charged with driving with an alcohol concentration of .08 or higher. This issue is now being litigated in Minnesota Federal District Court and has national consequences. Lee Orwig of our office has authored the amicus curiae source code brief which has been filed with the federal court seeking full disclosure of the source code. To view it, click here (PDF). To see informative TV news clips interviewing Marsh Halberg of our office on this issue click here or here.

Early this year, Lee Orwig and Marsh Halberg co-chaired the successful jury trial defense of our firm’s client charged with DWI and .08 in Hennepin County. Lee and Marsh raised the affirmative defense of post-driving consumption. They were able to successfully prove that defense to the jury showing it was likely that the client had consumed sufficient alcohol after driving (but before he was arrested) to place him over the legal limit.

A Dakota county judge ruled that the petitioner in an order for protection hearing brought against Nelson’s client had failed to establish that she was in fear of imminent harm. Accordingly, the court dismissed the petition.