The Minnesota DWI Case Of The Week is Halicki v. Commissioner of Public Safety (Decided April 25, 2022, Minnesota Court of Appeals, Unpublished) which stands for the proposition that you have to make a sufficient showing of a particular need in order to obtain the source code of the breath testing equipment.
In Halicki, the petitioner was arrested for dwi and tested at a .08% on the DataMaster breath testing equipment. Petitioner challenged the license revocation and sought to obtain the DMT's computer source code.
Halicki argued that the source code is relevant to whether his test revealed an alcohol concentration of 0.08 and whether the DMT testing method is valid and reliable. In support of his motion, he submitted the testimony of Dr. Andreas Stolz and exhibits purporting to show how an error in the source code could result in an erroneous DMT test result. In opposition to the motion, the commissioner submitted his own exhibits, including Halicki’s test results and an affidavit from forensic scientists in the Minnesota Bureau of Criminal Apprehension supporting the veracity and reliability of DMT breath testing.
The district court denied the discovery request, "concluding that nothing suggested that the particular DMT device used to test Halicki’s breath malfunctioned or was improperly used; “Dr. Stolz is not a qualified expert on breath testing or source code analysis”; and the commissioner did not possess the source code as it “is under the exclusive control of Intoximeters, Inc.”
On appeal, the Minnesota Court of Appeals affirmed the district court, stating:
"The DMT source code is not subject to mandatory discovery. Accordingly, the focus of our analysis is whether the district court abused its discretion by concluding the source code is not relevant to Halicki’s claims or defenses. Halicki contends it is relevant to determine whether the testing method was “valid and reliable” and whether the test results were “accurately evaluated,” as set out in Minn. Stat. § 169A.53, subd. 3(b)(10). The commissioner asserts that Halicki did not make the requisite showing of relevance because he did not provide evidence of potential error specific to his test."
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"Halicki cites State v. Underdahl, 767 N.W.2d 677 (Minn. 2009) (Underdahl II), for the proposition that the DMT source code is relevant to the validity and reliability of his breath-test results. In Underdahl II, the supreme court considered two consolidated criminal cases in which the district court ordered the State of Minnesota to produce the source code for the Intoxilyzer 5000. 767 N.W.2d at 679. As to defendant Underdahl, the supreme court concluded that the district court abused its discretion because Underdahl “made no threshold evidentiary showing whatsoever” that the source code was relevant to his guilt or innocence. Id. at 685. As to defendant Brunner, the supreme court discerned no abuse of discretion because Brunner “submitted source code definitions, written testimony of a computer science professor that explained issues surrounding the source codes and their disclosure, and an example of a breath-test machine analysis and its potential defects.” Id. at 686. Halicki asserts that he, like Brunner, sufficiently demonstrated the relevance of the DMT source code to warrant discovery. We are not persuaded for three reasons."
"First, Halicki overlooks the significant distinction between the discovery afforded in criminal and civil cases. In a criminal case, district courts may order discovery of any information that “may relate to the guilt or innocence of the defendant.” Minn. R. Crim. P. 9.01, subd. 2(3). In contrast, in an implied-consent case, the party seeking nonmandatory discovery must show how the information sought bears on the validity and reliability of the testing method used and the test results in the case at hand. Minn. Stat. § 169.53, subd. 3(b)(10); Abbott, 760 N.W.2d at 925-26 (citing Minn. R. Civ. P. 26.02). Underdahl II provides helpful context regarding the type of evidence courts consider in determining the relevance of a breath-testing device’s source code. But it does not alter Halicki’s burden to show that the source code is relevant to his claims and defenses regarding his breath test or compel a conclusion that the district court abused its discretion."
"Second, we see no clear error in the district court’s finding that Dr. Stolz is not a qualified expert on the topic of breath testing or the DMT source code. Halicki did not expressly challenge this finding in his briefing. Generally, “issues not argued in briefs are deemed waived on appeal.” State v. Grecinger, 569 N.W.2d 189, 193 n.8 (Minn. 1997). But even if Halicki did not waive this challenge, the record supports the district court’s finding regarding Dr. Stolz’s qualifications. Dr. Stolz is an associate professor at the National Superconducting Cyclotron Laboratory at Michigan State University. He studies rare isotopes and programs computer software to analyze measurements of these isotopes. He testified about his general familiarity with source codes but acknowledged that his work does not involve breath testing, source codes for breath-testing equipment, or the DMT. In short, the record supports the district court’s finding that Dr. Stolz lacks expertise to support Halicki’s request for discovery of the source code."
"Third, the district court did not misapply the law or otherwise abuse its discretion in determining that the evidence Halicki offered does not establish that the source code is relevant to Halicki’s claims and defenses. Halicki emphasizes that he submitted a law- review article, two newspaper articles, an article from an academic journal, and the expert report generated in State v. Chun, 943 A.2d 114 (N.J. 2008), which Brunner submitted in support of his discovery motion in Underdahl II. None of these submissions shed light on how the DMT source code is relevant to Halicki’s claims or defenses. The law-review article does not discuss the DMT source code or any potential problems with it, instead stating that “[m]any times, the greatest challenge is convincing the court that the source code is relevant and material” before directing the reader to other secondary sources. The newspaper articles chronicle experiences working with and assessing the reliability of breath-testing devices nationwide; neither mentions the DMT’s source code or anything specific to Halicki’s test results. And while the academic article concludes the DMT is not reliable at detecting the presence of mouth alcohol, Halicki does not contend that mouth alcohol affected his test results. Finally, the Chun report concerned the source code for the Alcotest 7110 Mk III, not the DMT."
Moral Of The Story: You probably have a better chance of getting the source code in the related criminal case.
If you or a loved one have been charged with a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and DUI questions.
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