Last week the Minnesota Supreme Court issued its highly anticipated decision in the DWI source code litigation. You can read a previous post about the oral arguments here. The Court affirmed the district court’s order, which held mostly for the State. Briefly, the Court held that the source code challenge did not raise questions as to the testing machine’s reliability when calculating a defendant’s blood alcohol concentration level (BAC). However, the Court did find that the source code may improperly classify certain tests as insufficient. These tests will be excluded unless the State can show that the particular test did not arise from a source code error.
Here’s the not so brief version:
For those unfamiliar, the source code litigation has been a multi-year challenge by a team of DWI attorneys affecting thousands of pending DWI cases. Essentially, the source code challenge alleged that the breath testing machine used to determine a driver’s BAC led to unreliable results, so the machine could not be used as a basis for a DWI. Experts analyzed the source code and prepared reports and testimony in front of First District Court Judge Jerome Abrams. Judge Abrams released an opinion mostly dismissing the source code challenges and finding that the machines were sufficiently reliable except in certain cases where the machine detected an insufficient amount of air had been blown.
The coalition of DWI attorneys received an expedited appeal from the Minnesota Supreme Court. In a 4-3 decision, the Supreme Court affirmed the district court in In re Source Code Evidentiary Hearings. The Court began with a good history of the litigation and the findings of the district court. Specifically, the Court noted that the attorneys had spent considerable time and resources preparing this challenge. Also, the Court explained how Judge Abrams had found the State’s witnesses more credible than the defense’s (and also that the company that the defense attorneys had hired to review the source code had in fact found the machine reliable). Then the Court proceeded to address the three challenges brought by the defense attorneys: 1) whether the district court used the proper standard to determine whether, despite the source code issues, the breath tests were reliable; 2) whether the defendants’ due process rights would be violated if they were unable to present evidence at trial of the source code issues; and 3) whether unreliable deficient tests could be admitted once the State introduces evidence that the deficiency wasn’t caused by a source code error.
Issue 1: The State met its burden of proving by a preponderance of the evidence that the machines’ results were reliable
The defense attorneys challenged that the BAC results were unreliable and should be excluded pursuant to Minnesota Rules of Evidence 104. The Supreme Court rejected this argument and announced that a preponderance of the evidence standard applied, adopting the burden from the Federal Rules. The Court found that although the district court did not expressly state its standard it was clear that the State had proven by a preponderance of the evidence that the machines were reliable. So, the Court concluded that the BAC results were admissible.
Issue 2: No Due Process violation occurred by excluding source code arguments from the defendants’ trials.
Because the BAC results were admissible, the defense attorneys next argued that they should be allowed to put their source code arguments in front of a jury at trial to challenge the results. They argued that denial of this ability violated the defendants’ due process right to present a complete defense. The Court rejected this argument, however, and focused on the fact that the defendants had had ample opportunity to prepare the challenge and have it heard in the consolidated proceedings. Because the issue had been decided, there was no point in having the issues heard again at trial. In footnote 18, though, the Court makes clear that individual challenges to a particular test are still allowed (such as whether cell phone interference caused a bad test). However, broad arguments that generally challenge the source code are now excluded.
Issue 3: Deficient tests can be made admissible if the State can present evidence that the deficiency wasn’t caused by a source code error.
The third issue centered around deficient tests, where the defendant is determined to have not blown enough air into the machine and can be charged with criminal test refusal. The defense attorneys successfully showed that if a person blows extremely hard, certain machines can incorrectly deem it a deficient test. The Court found that under Rule 104, the district court properly excluded this test evidence unless the State can show that it wasn’t caused by a source code error (such as the fact that a defendant wasn’t blowing extremely hard).
The dissenting opinion raised two concerns: 1) individual test errors might be excluded by the language of the majority opinion and 2) the defendant cannot meaningfully challenge the State’s evidence that a deficient test wasn’t caused by a source code error. First the dissent explained that excluding all source code evidence would leave a defendant unable to explain the significance of making sure a cell phone is away from the machine because it might cause an unreliable test. However, the majority opinion’s footnote 18 seems to clear up that this is not the Court’s intention. The Court seems to be excluding all general source code challenges while allowing defendants to argue that tests may be unreliable in individual cases. Second, the dissent was concerned that a police officer’s uncontroverted testimony that the defendant did not blow hard so the deficient test must be valid could not be meaningfully challenged by the defendant because the machine would provide no hard evidence of how much air was blown or the circumstances of the test. Here the dissent makes a valid point that it is easy for the State to meet its burden of showing that the deficient test wasn’t caused by a source code error while making it difficult for the defendant to controvert the officer’s testimony. However, this issue is endemic in many situations in the criminal justice system; for example, a police officer’s basis for stopping a vehicle or observation of intoxication without any recordings leaves the defendant in a position where it is their word against the police officer’s. Unfortunately, it seems to be condition of the system that a defendant may have to pit their word against a police officer’s when determining certain factual issues.
Ultimately, this should mark the end of the source code challenge. The Court has definitively ruled that the test results are presumptively reliable and, besides, the State has moved to different breath testing machines with a different source code. However, like a good horror-movie villain, I expect Minnesota DWI attorneys to continue to press the reliability of the breath testing machines and look for opportunities to get the evidence excluded.