Discovery of Breathalyzer Source Code in Dui Prosecutions

• Publication year: 2011

Washington Journal of Law, Technology Arts Volume 7, Issue 2 Fall 2011

Discovery of Breathalyzer Source Code in DUI Prosecutions

Aurora J. Wilson(fn*)

Abstract

In driving under the influence (DUI) cases, prosecutors habitually rely on the results from breathalyzer tests as proof of the defendant's blood alcohol level at the time of arrest. In response, DUI defendants often attempt to compel discovery of the source code contained in the test device, which can reveal whether the breath test at issue was performed accurately. Despite the popularity of this strategy, nearly all states to consider the issue have denied the defendant's motion for discovery of breathalyzer source code. The majority of courts construe state and federal rules of criminal procedure to limit discovery orders to information within the "possession, custody or control" of the prosecution and summarily hold that breathalyzer source code is not in the State's possession or control. Absent a contractual agreement granting the State proprietary rights to the code, the courts have failed to articulate a clear definition of what it means to be in possession, custody, or control of breathalyzer source code. This Article explores the classification of breathalyzer source code, the discovery rules surrounding its disclosure, and the implications of its protected legal status.

Table of Contents

Introduction..............................................................................122

I. The Relevance of Breathalyzer Source Code......................124

II. State v. Underdahl: Upholding Discovery of Breathalyzer Source Code.......................................................................125

III. Discovery of Breathalyzer Source Code Under the Federal Rules of Criminal Procedure..................................127

IV. State Approaches to the Discovery of Breathalyzer Source Code.......................................................................128 A. State Rules Treating Possession as a Threshold Requirement for Discovery.........................................129 B. State Rules Permitting Discovery Regardless of Possession...................................................................131

V. Courts Fail to Articulate a Clear Standard for Analyzing Possession..........................................................................132

Conclusion................................................................................133

Introduction

Breathalyzer(fn1) test results commonly provide critical evidence in cases involving charges for driving under the influence (DUI) or driving while intoxicated (DWI). Accordingly, defendants facing DUI or DWI charges routinely attempt to suppress breath-test results by arguing that their individual breath test was inaccurate. Although defendants may challenge the accuracy of breath test results in a variety of ways, demanding access to breathalyzer source code has become a popular defense strategy. Defendants often argue that expert analysis of the code could reveal flaws or inaccuracies in the breath test, which could refute the presumption that the device accurately measured the defendant's blood-alcohol level at the time of arrest. If the defendant could prevail on this argument, the court would likely suppress the breathalyzer test results as inaccurate and irrelevant, severely undermining the prosecution's case.

In criminal cases, discovery is governed by the state's rules of criminal procedure. Despite variation in their respective rules, state courts have arrived at similar results regarding the applicability of the rules of criminal procedure to the discovery of breathalyzer source code. Most states that have considered the issue rely on a provision that generally limits discovery orders to material within the "possession, custody, or control" of the prosecution or the state(fn2) and have denied defendants' motions for discovery of breathalyzer source code on the grounds that the prosecution does not "possess" the code.(fn3) However, the courts have not articulated a workable standard for determining when the source code is in the prosecution's possession, custody, or control. Instead, most courts reason that breathalyzer source code is the proprietary information of the manufacturer and cannot therefore be in the possession, custody, or control of the State.(fn4)

a recent decision by the Minnesota Supreme Court provides a rare example of a court holding that breathalyzer source code was in the State's possession or control.(fn5) In State v. Underdahl, the Minnesota supreme court upheld an order compelling discovery of breathalyzer source code based on the district court's findings that the defendant met his statutory burden, including proving that the source code was within the State's possession or control and relevant to his defense.(fn6) The Court held that a contractual agreement between the breathalyzer manufacturer and the State granted the State ownership of the code, supporting the district court's finding that "the State had possession or control of the source code."(fn7)

Nearly all courts to consider the issue distinguish Underdahl on the basis of this contractual agreement, treating possession of the source code as the dispositive factor in compelling discovery. This is true even in those states that afford the court some discretion in allowing discovery if the information is deemed relevant to the criminal defendant's case. While variations in the state rules of criminal procedure could allow some courts to compel discovery of breathalyzer source code regardless of whether the State possesses the code, the cases arrive at the same result. The courts largely hold that, absent an agreement similar to the one at issue in Underdahl, breathalyzer source code is not within the State's possession and is therefore not subject to a discovery order.

This Article examines the unique facts underlying the Underdahl decision, including the copyright agreement between the State of Minnesota and the breathalyzer manufacturer...