On January 25, 2009, I posted an article on this website entitled "Judge Throws Out More Than 100 Breathalyzer Tests." The article discussed how two different appellate courts affirmed the rulings of Manatee County Court Judge Doug Henderson that evidence of breath alcohol tests in more than 100 drunk-driving cases could not be presented at trial because the company that makes Florida's breathalyzers, CMI, Inc., has consistently refused to release the contents of its computer software to lawyers representing individuals accused of DUI in Manatee County.
On April 30, 2009, the Minnesota Supreme Court ruled similarly when it held in the case of State of Minnesota v. Brunner that a lower-court judge was correct in ordering the prosecutor's office to supply Brunner's lawyer with the computer source code for the machine that Brunner blew into because the source code might reveal deficiencies that could be used to challenge the reliability of the Intoxilyzer which could, in turn, ultimately affect Brunner's guilt or innocence.
The prosecutor's office argued that it could not provide Brunner's lawyer with the source code because it did not possess it due to the fact that the manufacturer of the breathalyzer, CMI, Inc., owned the code. The Supreme Court dismissed that argument finding that the State of Minnesota did, in fact, own part of the source code and that the prosecutor's office has a legal obligation to assist a defendant in seeking access to material that the prosecutor possesses.
Jury instructions in Minnesota state that jurors must assess the reliability of the breath-testing method in DUI cases. That being the case, said the Supreme Court, Brunner should be allowed access to the software that controls the testing procedure.
In Florida, jurors in DUI cases are instructed as follows:
"If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence to the extent that his normal faculties were impaired."
If such "other evidence" can arguably be acquired once access to the breathalyzer's computer software is obtained, then it would seem only logical that individuals charged with DUI should have such access. (But then again, who ever said that the law is logical?)