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Federal judge allows DWI suspects to intervene

By: BARBARA L JONES//November 17, 2008//

Federal judge allows DWI suspects to intervene

By: BARBARA L JONES//November 17, 2008//

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Minneapolis — A federal judge has allowed four DWI defendants to intervene in a lawsuit between the state and the maker of the Intoxilyzer over the device’s source code. U.S. District Court Judge Donovan Frank, rejecting a magistrate judge’s recommendation, said that the state of Minnesota cannot adequately represented the interests of the intervenors and others similarly situated who are being prosecuted for driving under the influence offenses.

The case is a battle between DWI lawyers, who want the source code that says how the Intoxilyzer determines blood-alcohol content; the state, which says that it can’t turn over the code because it doesn’t have it; and the manufacturer, CMI, which says the source code is a trade secret. Defense lawyers contend they need the code in order to be able to gauge the Intoxilyzer’s reliability. Prosecutors counter that the machine has been proven reliable and its source code is irrelevant. But the state, apparently seeking to put the argument behind it, sued CMI to force it to disclose the source code.

CMI and the state reached an agreement that would allow access to the source code, but defense attorneys said the interests of their clients were not protected because the access would be limited and only granted under onerous conditions.

Frank agreed, saying that the state’s previous position was that the drivers were not entitled to the source code and lawsuits seeking it were frivolous.

“Now [the state] seeks access to the source code, in the very case it previously argued would be frivolous, and has proposed a settlement with [CMI] purports to determine the right of the [a]pplicants and other DWI defendants to the source code and the terms under which it will be provided,” Frank observed.

“Under ordinary circumstances, denying intervention to a party when a governmental agency is present would be correct. The court, however, cannot conclude that under the circumstances presented here Plaintiff can adequately represent the Applicants’ interests,” Frank said.

The court’s action may delay settlement of the case, but that is a necessary and fair result, Frank said.

The next step in the case will be for the parties to schedule a status conference.

The case is State of Minnesota v. CMI.

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