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What is the Status of the Minnesota Intoxilyzer Source Code Litigation?

I belong to the Minnesota Society for Criminal Justice (MSCJ).  We are a group of 50 DWI Lawyers who, in 2008 through the present, formed a coalition with non-member criminal defense attorneys to fund the analysis of the Intoxilyzer 5000EN Breath Machine Software.  We have raised over $250,000 to pay for the analysis of the software.

The manufacturer of the Intoxilyzer 5000 Breath Machine is CMI Corporation.  They have been ordered by the United States District Court for the State of Minnesota to make available the software for the analysis by our experts.

MSCJ recently learned that CMI Corporation has a number of software patches (i.e. fixes for bugs in the software) that they have not chosen to implement on the Intoxilyzer machine. Why? We believe it is because they do not want our experts to focus on the problems that they have already found with the operation of the Intoxilyzer machine.  MSCJ scheduled a hearing on March 23, 2010 before the United States District Court to obtain an order disclosing the contents of the software patches.

The matter was subsequently litigated throughout the courts of Minnesota and the combined “source code challenge” cases are currently under consideration by the Minnesota Supreme Court.  Oral arguments were held on December 1, 2011 and we are awaiting the Court’s decision.

The use of the Intoxilyzer machine is under nationwide attack.  (Click here for recent developments in the Washington D.C. challenge to the reliability of the Intoxilyzer 5000 Machine.)  This is particularly true in Minnesota where thousands of intoxilyzer test results have been and are being challenged by competent DWI attorneys.

What Does This Mean For You:

If you were arrested for a Minnesota DWI based upon the results of an intoxilyzer test, it could be your lucky day (relatively speaking, that is)!

First of all, if you hire a competent Minnesota DWI Lawyer, he will file a challenge to the use of the intoxilyzer test.  That will place your case on hold until the source code litigation challenge is complete.  The current estimate is that it is going to be June of 2012 before the source code litigation is resolved.  If a proper challenge has been made on your behalf, a number of district courts will temporarily reinstate your driver’s license pending the resolution of the source code issue.

Second, prosecutors and the courts are under increasing pressure to resolve these cases (as they continue to pile up). So better deals are potentially to be had should a “source code challenge” be made on your behalf.

Finally, should the experts analysis reveal flaws in the software and in the operation of the machine it is likely that you will not end up with any alcohol related offense on your driving record.


On June 27, 2012, the Minnesota Supreme Court, in a four-to-three decision, upheld the use of the Intoxilyzer 5000 EN machine.  On August 7, 2012, the Court denied our Petition for Rehearing.  Our challenge has caused most jurisdictions to switch to blood or urine testing.  Those jurisdictions requesting breath samples are now using the Data Master breath machine (the BCA’s latest & supposedly “greatest” machine). Stay tuned!!

Contact Minnesota DWI Attorney F. T. Sessoms:

For answers to all of your Minnesota DWI and DUI questions, please call Minnesota DWI Attorney F. T. Sessoms at (612) 344-1505 today.