Intoxilyzer software is messed up, lawyers say

Lawyers challenging the use of Intoxilyzer breath tests in convicting drunk drivers say the copies of the machine's software they have been allowed to review are screwed up.

For years, the software inside the Intoxilyzer breath alcohol testing machine determined whether or not Minnesota drivers would be charged with a DWI. But four years ago Marsh Halberg and other defense lawyers challenged the use of the machine, arguing that if drivers were going to be convicted on the basis of its results, they ought at least to be able to review the software that runs it.

The manufacturer, Kentucky-based CMI, hemmed and hawed, and it wasn't until this spring that Halberg's experts were allowed to examine a copy of the code at CMI's headquarters. But on July 1st, CMI told Halberg that the machine his experts have been examining has two lines of incorrect code.

"The code was wrong, but we don't know yet how wrong it was," Halberg says. "It could be the equivalent of a master switch."

Meanwhile, Halberg's team has been leasing another Intoxilyzer from the state and analyzing it, but it turns out that version of the software is corrupted too. One of the chips that powers the machine has 35 percent more code on it than it ought to.

"How did that extra code get there? What effect is it having?" Halberg said. "We don't know."

Halberg says the state has told him that the extra code only appears on the machine he's leased and another one in use in Otter County, but Halberg doubts the state has really thoroughly tested all 280 machines.

The trial, which has snowballed over the years to include more than 2,200 statewide DWI cases, is slated to begin in October. But Halberg says that until his experts can get a clear look at the software, it's unlikely the case will be ready for court.

"We feel like we've been dealing with a moving target from the beginning," Halberg said. "We need to get a clear picture of what's going on here before we can go forward."

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