Doubts arise over fate of breathalyzer source code

An attorney for a Minnesota man accused of drunken driving says he doesn't think the manufacturer of a breathalyzer will meet a court-imposed deadline of August 17 to turn over its source code.

If that happens, his client could go free.

As CNET News.com reported earlier this week, the Minnesota Supreme Court ruled late last month that source code for the Intoxilyzer 5000EN, made by a Kentucky-based company called CMI, must be handed to defense attorneys for use in a case involving charges of third-degree DUI against a man named Dale Lee Underdahl. CMI's historic resistance to such demands has led to charges being dropped in at least one case outside of Minnesota.

In this case, the high court concluded that language in the contract between CMI and the state indicates the source code belongs by extension to Minnesota, rejecting the state public safety commissioner's earlier argument that the state was not entitled to the code because of its confidential, copyrighted and proprietary nature. The decision effectively means it's now up to the state to do what it takes to enforce that contract--including suing the company, if necessary.

But as for when the code would be turned over, "I guess the answer is probably never," attorney Jeffrey Sheridan said in a telephone interview Friday. That's because state officials, he added, "haven't given me any indication that the manufacturer has changed its mind."

It remains unclear what steps Minnesota officials plan to take, as representatives did not immediately respond to requests for comment. CMI also did not return calls for comment on Friday.

If August 17 comes and goes without the source code in his hands, Sheridan said he will request what is known as a sanctions hearing, which would likely occur within 30 days of that deadline. At that hearing, he would ask the judge to throw out any evidence the state had obtained using the device in question, which would likely prompt dismissal of at least one charge--that his client was driving with a blood alcohol concentration above the legal limit of .08.

That occurrence could have a ripple effect because the same device was used to administer about 38,000 tests in Minnesota last year, Sheridan suggested. He said he believes the state officials "know what's at stake, and they would happily give (the source code) to me if they have it to give."

Other breathalyzer makers already make their source code more readily available, perhaps in some cases in an attempt to gain a competitive edge, according to Sheridan. Of CMI, he said, "quite frankly, it's such bad P.R. for them...If there's nothing wrong with this thing...you'd think they'd step up and say, 'Sure, analyze away, you'll see we're the maker of the best breath-test analyzer on the face of the earth.'"

CNET News.com's Declan McCullagh contributed to this report.

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