Tuesday, September 30, 2008

Charles A. Ramsay & Associates has Moved

Our continued excellence of legal services are staying the same, but the law firm of Charles A. Ramsay & Associates has moved to a new location. Not far from our old location in The Rosedale Towers we are now just 2 miles North of the Rosedale Towers on Snelling Avenue . www.mapquest.com/maps.

Still in Roseville, our new address is:

2780 Snelling Ave. N. Suite #330

Roseville, MN 55113.


Our Phone number is still the same (651)604-0000, as well as our Fax number (651)604-0027.

Please Call to find out more information, or if you need clearer directions on how to get to our new office.


Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
2780 Snelling Ave. N. #330
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Monday, September 22, 2008

Lawyer Unveils Government's Efforts to Conceal Broken Source Code

Hundreds of Innocent Drivers Convicted of DWI

Minnesota is convicting innocent drivers of DWI as part of a conspiracy to conceal fatal flaws in the software that controls breath-testing machines used in drunk driving investigations, attorney Chuck Ramsay says.

The current version of Intoxilyzer 5000 software – in use since 2004 – inflates accused DWI drivers’ blood alcohol content readings, Ramsay said. In addition, the machine now requires a much larger breath sample than most drivers are physically able to provide. Those who can’t provide a sufficient sample are charged with chemical test refusal, a more serious offense in Minnesota than DWI. Many plead guilty to the less severe DWI crime, waiving their right to challenge the breath test result.

Chuck Ramsay's Breath Test Machine: Intoxilyzer 5000, Manufactured by CMI, Inc.

The machine’s manufacturer, CMI of Owensboro, Kentucky, attempted to correct the problem in April 2007 by providing the state with updated software. Minnesota officials, however, have refused to install the updated software in its Intoxilyzer machines, leaving the critically flawed software in use, Ramsay said.

“Thousands of people may have been harmed by the defective software. As long as they refuse to fix the problem, many more innocent citizens will be affected,” he said.

For more information about Minnesota’s refusal to address critical flaws in its breath-testing technology, please contact DWI attorney Chuck Ramsay at 651.604.0000. Ramsay has posted government documents on his website supporting his claim.

Posted by Charles A. Ramsay
http://www.ramsayresults.com/

Sunday, September 21, 2008

Attorneys Chuck Ramsay and Dan Koewler Complete National DWI Course


The attorneys at Ramsay & Associates, PLLC, pride themselves on keeping on the cutting of DWI / DUI defense. Last week attorneys Chuck Ramsay and Dan Koewler learned from some of the other best lawyers in the country at a three-day continuing legal education course in Las Vegas.


The classes included the following topics:

Reversing the Call on the Field: Persuading the Appellate Court
- Rod Kennedy

Chemical Test Discovery: Getting a Complete Scouting Report
- Troy McKinney
Ethics Jeopardy: What is the Right Thing to Do?
- Bruce Kapsack

Gearing-Up Your Offense: Suppressing the Evidence
- John Wesley Hall
What We Can Learn from the Inquest of the Death of Princess Diana
- Dr. Robert Forrest & Jess Paul
Field Sobriety Tests-- Running Through the Drills
- Gus McDonald
Advanced FSTs-- For Whom Are They Designed?
- Mimi Coffey
Was Your Client Tested on a Broken Machine?
- Tom Workman
Scoring the Winning Touchdown with Your Closing Argument
- Les Hulnick & Vic Pellegrino
Voir Dire of the Expert
- Dr. SunWolf
Blood Lab Secrets
- Dr. Robert Forrest & Jess Paul

On the last day of the program, the attorneys broke down in to small groups for the following workshops:

-Advanced Cross-Examination Techniques
Instructed by Mike Hawkins
-Perfecting Your Opening & Closing
Instructed by Les Hulnick & Vic Pellegrino
-Crossing the Officer on FSTs
Instructed by Troy McKinney, Mimi Coffey, and Steven Oberman
- Auto Brewery Syndrome
Instructed by Dr. Robert Forrest
-Bring Your File
Instructed by Jess Paul
-Challenging Drug Recognition Experts
Instructed by Judge Rod Kennedy and Dr. Robert Forrest
-Developing & Implementing Effective Juror Questionnaires
Instructed by Dr. SunWolf
- Converting Your Preemptory Challenge Into One For Cause
Instructed by Dr. SunWolf
-What Every Attorney Must Know About Infrared Spectroscopy
Instructed by Tom Workman and Bruce Kapsack
-Cross-Examination of the Breath Tech
Instructed by Steve Jones
-Cross-Examination of the Blood Tech
Instructed by Gus McDonald
-Analyzing the Police Video
Instructed by Tony Palacios & Sara Compher-Rice

Chuck and Dan are eager use new ideas and know-how in Minnesota. No doubt the classes will benefit their clients immeasurably.

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC

450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com/

Friday, September 19, 2008

Top Minnesota Officials Conspire to Convict Innocent Drivers of DWI

Citizens Lose License, Vehicles & Freedom Despite Available Software Fix


Since at least 2004 Minnesota’s breath test machine has erroneously found innocent drivers of violating the state’s impaired driving laws. A programming error in the Intoxilyzer 5000 software falsely reports drivers of blowing an insufficient amount of air into the machine for analysis. Under state law, a person loses their license for at least one year and even first time offenders are put in jeopardy of serving time in jail, paying huge fines and forced supervised probation. Other penalties may include loss of license plates and vehicle forfeiture. Innocent drivers also face collateral consequences such as loss of job, and can destroy an entire family’s way of life.

“Smoking Gun”

Earlier this year I discovered evidence of the problem. The Minnesota BCA alerted CMI, the breath test machine’s manufacturer, that software installed in 1994 made it more difficult or even impossible for some people to give a sufficient sample.

See Smoking Gun Email

In response, BCA scientists issued sworn affidavits dismissing the email, claiming the manufacturer had satisfactorily addressed the problem. Implying that innocent people would not be affected, the documents conclude no material changes were made and the test results continue to be sound science.

See Affidavits of BCA Scientists David Edin and Karin Kierzak

“Raging Inferno”

Newly discovered documents seem to refute the BCA’s claim. Emails show that in April, 2007, CMI acknowledge the machine’s erroneous rejection of otherwise valid samples and provided a corrected version of the software. With full knowledge of critical flaws in the machine’s software, the BCA has refused to install the corrected software.

BCA Sources: Commissioner Prevents BCA from Correcting Software
Two credible sources have confirmed this, including the former supervisor of the BCA’s toxicology section. One source explained the Commissioner of Public Safety ordered the lab to make no changes to the software to avoid attracting unwanted attention to the breath test machine.

The Source-Code Issue

In 2006 defense attorneys began demanding access to the Intoxilyzer source code, the human readable software which is compiled into a machine readable language. The commissioner believed the lawyers’ so-called “source code” challenge would quickly blow over. Any software changes would prolong the litigation and add expense and aggravation.

The “source code” issue didn’t blow over. It blew up.

Sources: AG’s Office Involved in Cover-Up Conspiracy

According to the sources, the Office of the Attorney General was also involved. The AG office, which provides legal counsel and representation to the Commissioner, either acquiesced or approved of the plan to keep the software as it to avoid exacerbating the source code issue.

See Inferno Documents Showing CMI Knows of Broken Software, Yet Refuses to Upload Fix

AG Files Federal Law Suit

CMI has refused to produce the software for independent analysis. In March, under pressure
from state judges who had dismissed hundreds of DWI cases, the AG filed suit against CMI in federal court. Publicly the state claimed it wanted to obtain the source code from CMI.
Many attorneys, including this author, believed the federal suit was a rouse only to stem the tide of DWI dismissals in state court. A few believed the AG intended to use the suit for other purposes such as to delay any source code ruling until after the state acquired new breath test devices, or to keep defense lawyers from seeing the source code completely.

Motion to Intervene Denied
The “smoking gun” email triggered action. Believing the AG did not intend to act in the best interests of citizens, this author filed a motion to intervene in the lawsuit in early June, 2008. The federal court issued its ruling this week denying the motion.

Last Friday the AG and the CMI announced it had reached a settlement. The AG reported it was victorious, having secured access to the source code and did so without cost to drivers or their experts. A thorough analysis reveals of the agreement does nothing for Minnesota citizens.
Breath Testing Should Cease Immediately Until Fixed
In June after the discovery of the Smoking Gun, this author called for an immediate moratorium of Minnesota’s DWI breath test program. In response, the government issued sworn affidavits which are contradicted by newly discovered documents and by very credible BCA sources.
Nothing changed. Innocent people continue to be hurt.
Recent Case Example of Innocent Driver
A good example is displayed here. This person was arrested after a cell phone caller claimed a group of drunk people were about to get into a car and drive. Police stopped my client and eventually brought her to the police station for breath testing.

Under penalty of incarceration, Minnesota DWI statutes require drivers to blow two sufficient breath samples into the machine for analysis. If the machine reports the samples to be deficient, drivers are charged with criminal test refusal – a crime more severe than blowing over .08. Consequences range from one year loss of license to jail. People lose their jobs and it can negatively change their entire way of life.

See How Broken Source Code Adversely Affected My Client’s Breath Test Here

This woman had only a 0.061% alcohol concentration – well under the 0.08 limit. For her first sample she blew 1.8 liters of air, well over the minimum 1.1 liters. The machine did not accept her second sample, despite apparently providing at least as much air. Although the machine determine her second sample to be 0.064%, it reported her sample “deficient.” The state revoked her license, and charged her with Gross Misdemeanor Test Refusal under Minnesota’s DWI statutes.

This is a real life example of the ramifications of the state’s willful and deliberate disregard for the rights of innocent people. She was well under the legal limit and provided one sufficient sample of air. The machine using defective software deemed her second sample deficient for no apparent cause.

Help!

If the state’s top prosecutor or her office is involved in this conspiracy to cover up the critically flawed breath test machine, who will put a stop to this?
You can help. Call your state and federal representatives. Tell them to put a stop to this NOW! While we can and should do what we can to stop the carnage on the highways caused by drunken driving, we should not do carnage to the constitution in the process.

Look for more information on my website.

Saturday, September 13, 2008

MINNESOTA DWI BREATH TEST SOURCE CODE SETTLEMENT AGREEMENT DOCUMENT

As I noted in yesterday's post, MINNESOTA AG CONSPIRES WITH BREATH TEST MAKER TO DENY FULL ACCESS TO COMPUTER SOURCE CODE, the AG and the Intoxilyzer manufacturer are asking a federal court judge to order a permanent injunction to prevent anyone from seeking access to the source code except under conditions dictated by CMI.

Below is a text version of the Proposed Settlement Agreement.
Here is a PDF version filed by the parties, Minnesota AG & the Intoilyzer Manufacturer (CMI).

___________________________________________________________________

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
State of Minnesota

by Michael Campion, its
Commissioner of Public Safety,

Plaintiff, [PROPOSED] CONSENT JUDGMENT AND PERMANENT INJUNCTION
CMI of Kentucky, Inc.,

a Kentucky corporation,

Defendant.

WHEREAS, this Consent Judgment, including the Permanent Injunction, is intended to resolve the above-captioned litigation between the State of Minnesota, by Michael Campion, its Commissioner of Public Safety (“State”), and CMI of Kentucky, Inc. (“CMI”) (collectively “Parties”), regarding ownership of, and access to, the source code (“Source Code”) for the Minnesota version of the Intoxilyzer 5000EN, the breath-alcohol testing instrument used to enforce the driving while impaired (“DWI”) laws in Minnesota; and

WHEREAS, by a contract awarded in January 1997, the State bought a fleet of Intoxilyzer 5000EN breath-alcohol testing instruments from CMI, which are used to test the breath alcohol concentration of persons who may be charged with violations of Minnesota’s driving while impaired laws; and

WHEREAS, an individual arrested for DWI in Minnesota faces both civil and criminal consequences. First, a person arrested for DWI is subject to criminal prosecution under the criminal DWI laws, which may include criminal charges, fines, and possible incarceration. Second, a person arrested for DWI who fails or refuses to submit to chemical testing is subject to civil remedial measures under the Implied Consent Law, which includes revoking the driver’s license and recording the offense on the driver’s record, as well as the impoundment of license plates and vehicle forfeiture where appropriate; and

WHEREAS, the issue of access to the Source Code first arose in early 2006, when the MN DPS began receiving motions for production of the Source Code from individuals arrested for DWI and challenging the validity of their breath test results in the state district courts. Although these discovery motions have been denied in the majority of cases, the discovery motions have been granted in some cases and some of those cases have been dismissed based on the MN DPS’s inability to produce the Source Code; and

WHEREAS, CMI considers the Source Code to be a valuable trade secret and has only rarely granted access to parties outside the company under carefully considered and rigorous restrictions; and

WHEREAS, the State filed suit against CMI in this Court on March 3, 2008, claiming that it owns all or some part of the Source Code by virtue of an assignment provision in the Parties’ contract, that the State possesses a copyright interest in the Source Code that CMI has infringed, and that the Parties’ contract obligates CMI to provide the Source Code to petitioners in implied consent cases and defendants in criminal DWI cases in certain circumstances; and

WHEREAS, CMI filed its Answer to the State’s Complaint on April 9, 2008, denying the State’s claims and asserting counterclaims for declaratory judgments that it owns the entire Source Code and that the Source Code is a trade secret; and

WHEREAS, since the inception of this matter, the Court has strongly encouraged the Parties to negotiate a reasonable settlement; and

WHEREAS, the Parties, wishing to avoid the cost, risk, uncertainty, and delay of further protracted and expensive litigation, including likely appeal, have entered into a Settlement Agreement (“Settlement Agreement”) that is contingent upon the entry of this Consent Judgment and Permanent Injunction (“Consent Judgment”); and

WHEREAS, in furtherance of and in conjunction with the Settlement Agreement, the Parties, have consented to the entry of this Consent Judgment; and

WHEREAS, the Court has carefully considered the validity and reasonableness of this Consent Judgment, and based upon its Findings of Fact and Conclusions of Law;

NOW, THEREFORE, IT IS HEREBY ORDERED:

I. JURISDICTION AND VENUE

The State’s Complaint sets forth a cause of action under the Copyright Act, 28 U.S.C. §§ 101 et seq., as well as the common law of Minnesota. Accordingly, this Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1338(a), and 1367. Venue is proper pursuant to 28 U.S.C. § 1391(a)(2), as a substantial part of the events giving rise to the action occurred in this judicial district.

II. THE SETTLEMENT AGREEMENT

The State and CMI mutually desire to make the Source Code readily and reasonably available to defendants and petitioners subject to Minnesota’s DWI and implied consent laws under circumstances and conditions that adequately recognize and protect CMI’s interest in its intellectual property. Therefore, to avoid further cost, risk, and uncertainty associated with protracted litigation in this case, including likely appeal, the Parties have entered into a Settlement Agreement. The Settlement Agreement is expressly contingent upon the Court’s entry of this Consent Judgment and is fully incorporated herein by reference.

III. FINDINGS OF FACT

Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the stipulations, and evidence presented by the Parties, the Court finds the following:

In January 2007, the State and CMI entered into a contract through a Request for Proposal (“RFP”) issued by the State, a responsive Proposal submitted by CMI, and a Notification of Contract Award by the State (collectively the “Contract”). Pursuant to the terms of the Contract, CMI sold Intoxilyzer 5000EN breath-alcohol testing instruments to the Minnesota Department of Public Safety (“MN DPS”). There are approximately 200 Intoxilyzer 5000EN instruments being used by law enforcement agencies throughout Minnesota. The documents attached hereto as Exhibit 1 constitute the full and complete initial Contract between the State and CMI for the sale and maintenance of the “Minnesota model” of the Intoxilyzer 5000EN.

The specific phrase “source code” does not appear within the Contract. An assignment provision assigns only such “copyrightable material which [CMI] shall conceive or originate … and which arises out of the performance of this Contract.” (Ex.1.) CMI has presented substantial evidence that the majority of the Source Code was conceived and originated prior to the execution of the Contract. (Affidavit of Toby Hall (“Hall Aff.”), attached hereto as Exhibit 2.) The State currently has no evidence to rebut CMI’s evidence. Based on the evidence presented, the Court finds that the majority of the Source Code was conceived and originated prior to the execution of the Contract.

The topic of “access” to the Source Code is also not specifically addressed in the Contract; rather, the Contract merely references CMI’s provision of “information” to be used in connection with litigation. (Ex. 1.) The Court finds that the Contract clearly contemplates that such information includes the Operator’s Manual for the Intoxilyzer 5000EN but does not expressly identify or specify the scope of other “information,” if any, to be provided by CMI.

The Intoxilyzer 5000EN instruments are used by various law enforcement agencies throughout Minnesota to administer alcohol concentration tests on individuals arrested for DWI. (Affidavit of Emerald Gratz (“Gratz Aff.”), attached hereto as Exhibit 3.) More than 30,000 drivers are arrested for DWI every year in Minnesota. (Gratz Aff.) Although the problems associated with DWI occur nationwide, the problem appears to be worse in Minnesota: in 2003, alcohol-related fatalities increased in Minnesota by 4.3% while declining in 28 other states. (Id.) Repeat drunk drivers pose a particular problem for law enforcement in Minnesota: in 2003, 41% of drivers arrested for DWI in Minnesota were repeat drunk drivers. (Id.) The use of breath testing is a highly valuable tool for addressing the problems posed by repeat drunk drivers because studies have shown that the sooner an individual arrested for DWI faces consequences, the less likely that person is to re-offend. (Id.) Pursuant to Minnesota statutes and case law, the results of a breath-alcohol test administered using an Intoxilyzer 5000EN are presumptively valid. See Minn. Stat. § 169A.03, subd. 11 (2008); Minn. R. 7502.0420 (2008); Jasper v. Commissioner of Public Safety, 642 N.W.2d 435 (Minn. 2002).

The issue of access to the Source Code first arose in early 2006, when the State began receiving demands for production of the Source Code from individuals arrested for DWI and challenging the validity of their breath test results in both criminal DWI and implied consent cases in state court. (Gratz Aff.) State courts have ordered production of the Source Code in over one hundred criminal DWI and implied consent cases statewide. (Id.) However, the State has never possessed a copy of the Source Code. (Id.) Based on these orders, the State asked CMI to produce the Source Code and CMI eventually agreed to do so, but only upon the entry of a protective order in the DWI or implied consent case that was satisfactory to CMI, including the execution of a non-disclosure agreement by the person(s) receiving access to the Source Code, and reimbursement by the defendant or petitioner to CMI for its costs incurred in binding and mailing the Source Code. (Id.) If a state court refused to issue a protective order and require a non-disclosure agreement that were acceptable to CMI or to order the requesting party to pay CMI’s cost of producing the Source Code, CMI declined to make the Source Code available. (Id.)

CMI produced the Source Code in one case at a cost to the defendant of $1,675.00 (actual cost to CMI was $2,039.00). (Hall Aff.) In cases where the state district court ordered production of the Source Code and it was not produced, some state district courts subsequently dismissed both DWI and implied consent cases. (Gratz Aff.)

Faced with the potential consequences of having breath test results suppressed based on the Source Code issue, some criminal prosecutors in Minnesota advised their police departments to stop using the Intoxilyzer 5000EN and to instead opt for either blood or urine testing. (Gratz Aff.) These decisions have had a significant negative impact on the Minnesota Bureau of Criminal Apprehension (“BCA”) because fluid tests, which require BCA scientists to test a fluid sample, cost more money to process than breath tests. (Id.) In addition, the added fluid tests for DWIs are competing for resources with BCA fluid tests for other criminal cases, including DNA testing for murder, assault and rape cases, and controlled substance cases. (Id.) Furthermore, the State’s inability to produce the Source Code has impacted the Minnesota judicial system with the increased filings of motions seeking discovery of the Source Code in criminal DWI and implied consent cases, which has taxed already strained judicial resources. (Id.) The Court finds that this has disrupted the effective functioning of law enforcement agencies and the state court system regarding the proper enforcement and adjudication of Minnesota’s DWI laws, which are critical to the safety of the citizens of Minnesota.

The Court finds that the Source Code is not generally known or readily ascertainable. (Hall Aff.) The Court also finds that CMI has made reasonable efforts to maintain the Source Code’s secrecy, and that the Source Code derives independent economic value from its continued secrecy. (Id.)

The Court finds that providing the Source Code in printed, hardbound book format, with stitched bindings, marked “Do Not Copy” on each page, and in the digital format described in paragraph 3 of the Permanent Injunction will provide reasonable access while also reasonably protecting the Source Code’s trade secret status. (Hall Aff.) The Court finds that production or reproduction of the Source Code in any electronic format other than the digital format described in paragraph 3 of the Permanent Injunction presents an undue and unreasonable risk to its trade secret status due to the ease with which electronic and digital data may be copied and transmitted, and the near impossibility of completely deleting or removing electronic or digital data once it has been loaded into a computer system. (Id.)

The Court finds that the Source Code contains various security features and menu passcodes, the disclosure of which would seriously compromise the security of the State’s networked system of Intoxilyzer 5000EN breath-alcohol test instruments. (Hall Aff.) The Court therefore finds that the provision of the Source Code with critical security features and menu passcodes redacted will provide reasonable access while also reasonably protecting the State’s networked system of Intoxilyzer 5000EN breath-alcohol test instruments.

IV. CONCLUSIONS OF LAW

Applying the law to its findings, the Court now concludes:

After careful review of the Contract and the evidence currently before the Court, the Court concludes that the State does not own all of the Source Code under the Contract’s assignment provision because the majority of the Source Code was conceived and originated prior to the execution of the Contract, and, therefore, was not assigned to the State.

The Court concludes that it need not resolve the question of whether the Source Code is “information” that the Contract requires CMI to produce to petitioners in implied consent cases and defendants in criminal DWI cases because the terms under which the Source Code will be made available pursuant to the Settlement Agreement are materially no different, and in some respects are more favorable, than if the State had prevailed on this claim.

Based on its finding that the State’s inability to provide access to the Source Code has caused a disruption to the enforcement and adjudication of Minnesota’s DWI laws, the Court concludes that the State has suffered and will continue to suffer substantial and irreparable harm. Based upon its finding that the disclosure of the Intoxilyzer 5000EN network security features and menu passcodes would compromise the security of the State’s networked system of Intoxilyzer 5000EN breath-alcohol test instruments, the Court concludes that disclosure of those security features and menu passcodes would also cause the State to suffer irreparable harm. For each of these reasons, the Court concludes that entry of a Permanent Injunction is necessary and appropriate. The Court also concludes that the likely harm to the State in the absence of this Permanent Injunction outweighs any burden upon CMI resulting from the issuance of the

Permanent Injunction.

Based upon its findings that the Source Code is not generally known or readily ascertainable, that CMI has made reasonable efforts to maintain the Source Code’s secrecy, and that the Source Code derives independent economic value from its continued secrecy, the Court concludes that the Source Code is a trade secret as defined under the Minnesota Uniform Trade Secrets Act, Minn. Stat. § 325C.01, subd. 5 (2008).

Because the Source Code is a trade secret and its public disclosure would cause CMI to suffer substantial and irreparable harm, the Court concludes that entry of the Permanent Injunction is also necessary and appropriate to reasonably protect the Source Code. The Court concludes that the likely harm to CMI in the absence of this Permanent Injunction outweighs any burden upon the State resulting from the Court’s issuance of the Permanent Injunction.

Finally, the Court concludes that the entry of this Consent Judgment, and the Permanent Injunction set forth below, serves the public’s interest by providing a mechanism under which the Source Code can be made readily and reasonably available at no cost to petitioners in implied consent cases and defendants in criminal DWI cases, subject to a reasonable protective order and non-disclosure agreement in a form commonly used in litigation, to prevent undue risk to the security of the State’s networked system of Intoxilyzer 5000EN breath-alcohol test instruments or to the Source Code’s trade secret status.

V. PERMANENT INJUNCTION

Pursuant to the All Writs Act, 28 U.S.C. § 1651, and Rule 65 of the Federal Rules of Civil Procedure, the Court orders that CMI shall make the Source Code available to Authorized Minnesota litigants (as defined in Paragraph 4, below), their counsel, or their experts for inspection and review, subject to the following terms and conditions:

Pursuant to the Settlement Agreement and the Consent Judgment, not later than ten (10) days after the execution of this Consent Judgment, CMI shall make the Source Code available to Authorized Minnesota litigants, their counsel, or their experts, for inspection and review, at CMI’s corporate headquarters in Owensboro, Kentucky. CMI shall not charge Authorized Minnesota litigants, their counsel, or their experts any fee for such access to the Source Code for inspection and review.

CMI shall make the Source Code available to Authorized Minnesota litigants, their counsel, or experts, during regular and reasonable business hours, excluding weekends, holidays, and any days when CMI is not open for regular business purposes. Under no circumstances shall the Source Code leave the custody of CMI.

CMI shall make the Source Code available to Authorized Minnesota litigants, their counsel, or their experts in two formats: (1) a printed, hardbound book form, and (2) a digital format located on a secured computer at CMI’s facility.1 The Source Code shall be full and complete in all respects except that Source Code language controlling the instrument’s network security features and menu passcodes shall be redacted. Access to the redacted portion of the Source Code may be sought by Authorized Minnesota litigants as set forth in Paragraph 6, below. Both the printed and digital forms of the Source Code, and the entire contents thereof, shall remain at all times at CMI’s facility in Kentucky and the exclusive property of CMI.

A petitioner in an implied consent case, the Commissioner of Public Safety, a defendant in a criminal DWI case, or the State, county, or local prosecuting authority, shall be an Authorized Minnesota litigant if all three of the following requirements are fulfilled: i) production of the Source Code has been ordered by the state district court judge presiding over the implied consent or criminal DWI case; ii) the state district court judge has issued a Protective Order in the criminal DWI or implied consent case that designates the Source Code and any information relating to the Source Code as confidential, protects such confidential information from disclosure to persons or entities outside the litigation, and requires that the confidential information be destroyed within thirty (30) days of the final termination of the litigation (including appeals); and iii) the person(s) receiving access to the Source Code has executed a Non-Disclosure Agreement in the form attached hereto as Exhibit 5. The provision of access to the Source Code for purposes of inspection and review shall not confer any other right, title, license, or interest in the Source Code to any person or entity.

CMI shall not be required to provide access to the Source Code to any person who is, or has been, employed by (as an employee, agent, or consultant) or otherwise affiliated with, any manufacturer of breath alcohol testing equipment within the preceding twenty-four (24) months.

Access to the redacted Source Code security features may be sought by a Motion to this Court brought by any Authorized Minnesota litigant, provided that the Motion must be accompanied by a sworn affidavit from an expert witness attesting that he or she has: i) fully examined a copy of the Source Code held by CMI; ii) concluded that it is reasonably likely that a problem exists with the instrument’s ability to accurately and reliably measure the defendant’s or petitioner’s breath alcohol concentration; and iii) the instrument’s ability to accurately and reliably measure a test subject’s breath alcohol concentration cannot be ascertained without an inspection and review of the redacted network security features and menu passcode information. This sworn affidavit must describe the alleged problem with specificity and describe in detail why access to the redacted network security features and passcode information is necessary. Any such Motion must adhere to the requirements of Local Rule 7.1(b) (“Dispositive Motions”) and notice of the Motion must be served upon CMI and the MN DPS in accordance with Rule 5 of the Federal Rules of Civil Procedure. The movant shall bear the burden of proof on any such Motion by a preponderance of the evidence. If the Motion is granted, the moving party, the Commissioner of Public Safety, or the State, county, or local prosecuting authority, along with his, her, or its counsel and expert shall be granted access to inspect and review the redacted portion of the Source Code at CMI’s headquarters in Owensboro, Kentucky. CMI shall not charge Authorized Minnesota litigants, their counsel, or their experts any fee for such access to the redacted portions of the Source Code for inspection and review.

This Injunction is Permanent in nature. It shall continue in full force and effect until it has been vacated by this Court or other court of competent jurisdiction, or until such time as the State has completely discontinued use of the Minnesota version of the Intoxilyzer 5000EN instrument for evidentiary purposes and the time for appeal of any conviction or revocation involving such evidence has run.

VI. CONTINUING JURISDICTION

This Court shall maintain continuing jurisdiction over this Consent Judgment and Permanent Injunction. This Consent Judgment and Permanent Injunction are governed by federal law and may be modified only in accordance with the Federal Rules of Civil Procedure and applicable law.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: , 2008

The Honorable Donovan W. Frank
United States District Court Judge

1 Specifically, access to the digital format shall be provided as follows: digital access to all of the human readable source files for all of the processors that are required to create the executable image(s) for the Intoxilyzer 5000EN. The term source code includes all assembly files and C code files that are required to build these executable images. The term “digital access” implies the capability to do digital text searches. The computer system that these files are to be viewed from will have searching capabilities.
___________________________________________________________________

Coming Next ...

How Minnesota dishonestly slithered into federal court to meet the court's jurisdictional requirement and Why!


Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC

450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Friday, September 12, 2008

MINNESOTA AG CONSPIRES WITH BREATH TEST MAKER TO DENY FULL ACCESS TO COMPUTER SOURCE CODE

MINN ATTORNEY GENERAL & CMI SEEK PERMANENT INJUNCTION

"THE AG DIDN'T FILE SUIT TO FIGHT FOR THE SOURCE CODE, IT SUED TO KEEP US FROM GETTING IT." - Charles A. Ramsay

Today the Minnesota Attorney General and CMI filed the terms of their Source Code settlement in federal court. The agreement permits CMI to deny full access to the inner workings of the Intoxilyzer 5000. In March the Minnesota Attorney General apparently to enforce the contract with CMI, the breath test machine manufacturer. Instead, the AG is now asking a federal court judge to order a permanent injunction to prevent lawyers and citizens from requesting or obtaining independent review of the software which controls all of the machine's functions.

Charles Ramsay, a Minnesota lawyer, filed a motion in June to intervene. At the time Ramsay predicted the AG would not act in the best interests of Minnesotans . Both the state and CMI oppose Ramsay's motion.

"The AG didn't file suit to get the source code, she sued to keep it secret," said Ramsay upon learning of the settlement. "Our citizens are worse off now than before the AG filed suit. This is precisely the reason the court must grant intervention."

The federal court judge will hear arguments in December to evaluate the merits of the proposed settlement.

The settlement documents are posted at the Minnesota DWI Defense blog.

Read The Settlement Agreement

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC

Minnesota DWI Defense Blog

450 Rosedale Towers
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Tuesday, September 2, 2008

Minnesota Supreme Court Agrees to Hear Underdahl II



Court of Appeals’ Decision No Longer Precedential Authority

On August 5, 2008, the Minnesota Supreme Court issued an order granting review of the Minnesota Court of Appeals’ decision in State v. Underdahl, 749 N.W.2d 117 (Minn. App. 2008).

In that decision, the Court of Appeals held that when a defendant seeks discovery of computer source code for the breathalizer, a trial court’s determination that the source code is discoverable (pursuant to Rule 9.01 of the Minnesota Rules of Criminal Procedure), must be premised on showing that examination of the Intoxilyzer’s software would show defects in its operation or at least would be necessary to determine whether defects exist. In such a ruling, the Court of Appeals drastically limited the availability of this crucial element of a defendant’s defense to a trumped up DWI charge, and overturned a trial judge’s decision that the source code was relevant and therefore defendants have a constitutional right to access to the source code.

As a result of the Minnesota Supreme Court’s decision to review this backward decision of the Court of Appeals, the Court of Appeals decision has no precedential value and is no longer binding. Trial Court’s are therefore once again free to determine whether the Source Code is relevant to the defense, without regard to the Court of Appeals’ restriction.


Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Virginia’s Smoking Gun

The Commonwealth of Virginia uses Intoxilyzer 5000 for their Breath Alcohol Content testing, just like Minnesota. The difference? Virginia has apparently caught on to the problems presented by this equipment.

In an application for additional funding, the Department of Forensic Science requested $196.870 (in addition to another $984,350 over five years) to replace the Breath Alcohol Equipment. According to the application, the Forensic Scientists in Virginia had “developed a plan to replace evidential breath test instruments used by police officers throughout the Commonwealth in the enforcement of the State’s DUI statutes.” When asked what the consequences of denying the funding would be, the Department commented that granting the request would allow the state to replace the Intoxilyzer 5000 that are 9-10 years old (the request was made in 2007; the machines are now 10-11 years old).

Finally, the Department was asked what the expected results would be if the state granted their request. Their response was “[t]o replace dated, unstable and unreliable Breath Alcohol instrumentation used by police officers throughout the Commonwealth to certify whether a driver is or is not impaired.” I applaud the Commonwealth of Virginia for stepping up and admitting that the equipment they were using was “unstable and unreliable and in taking steps to correct the problem.

One has to wonder, if Virginia’s machines are admittedly faulty, how is it possible that Minnesota’s machines are functioning correctly beyond all reasonable doubt?


Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

How to Win Your Case With a Breathalyzer Test of .115

What the BCA is afraid you’ll find out


First, a little bit of background. I represent a client that got picked up for suspicion of DWI. The police gave him a breathalyzer test at 12:40 a.m. that returned a result of .110 (Minnesota’s legal limit is .08). They gave him a second test four minutes later that returned a Blood-Alcohol level of .115. Seemingly, his proverbial ship is sunk, right?

Think again. After being released by the police, my client went and got a Blood-Alcohol test done on his own. At 3:04 a.m., 2 hours and 24 minutes after the first intoxalyzer test, his Blood-Alcohol level was as .046. Comparing the test results, this means his BAC dropped .064 since the 12:40 test, and .069 since the 12:44 test. These figures correspond to a drop rate of .0267/hour and .0296/hour respectively.

Now, lets look at the science behind blood-alcohol levels. Studies have shown that the average dissipation rate for BAC is .015/hour. The average range, dependent upon a number of factors (age, weight, sex, how quickly the drinks were consumed, etc), is .01 to .02/hour. Clearly, my client’s dissipation rates fell well outside this average range. Even at the very edges of the realm of possibility, alcohol will leave your body at a rate of .009 to .03 per hour. This dissipation rates shown above barely fall within that range.

What does this mean? To put it simply, it’s another piece of evidence that breathalyzer results are not infallible. So where do we go from here? Now that there is evidence of doubt about the reliability of the tests, lets work backward and see where that gets us. As I said, at 3:04 a.m., a Blood Alcohol Analysis returned a result of a .046 BAC. If we take that test result and work backward to the legal limit, we’ll find where his BAC may have actually been when the police arrested him. Minnesota’s legal limit is .08 BAC, .034 higher then his 3:04 a.m. test. Taking that difference and dividing it over the 2 hours 24 minutes between the first and third test, you get a dissipation rate of .0142/hour. While this is within the normal range (it’s almost the average rate exactly), it means there is almost a 45% chance that at 12:40, when the police arrested him, his BAC was below the legal limit. 45 percent is clearly reasonable doubt.


Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Republican National Convention: A Need to Protect Fundamental Civil Rights

The United States has a long and proud tradition of protecting an individual’s right to vocally and publically disagree on politically sensitive issues. The First Amendment rights of free assembly and free speech enshrine a protestor’s right to make their opinion’s known.

Unfortunately, these cherished rights aren’t as respected as they should be, and often those genuinely concerned protesters who are committed to the struggle for change can be unconstitutionally ensnared in the legal system. Along with all of the press coverage surrounding the Republican National Convention being held in St. Paul, MN, Minnesota law enforcement officials and courts are gearing up for record numbers of arrests of protesters. Additional police are being brought in from around the State, and many courts intend to hold evening and overnight court sessions to process the large volume of individuals expected to be charged with crimes.

If you plan to exercise your constitutional rights and protest at the Republican National Convention, (or if you even plan to be in the area during the convention), you run the risk of being arrested and charged with a wide variety of crimes; such crimes include tresspassing, unlawful assembly, interference with the use of public property, obstruction of legal process, resisting arrest . . . the list goes on, and is limited only by the creativity of local police and prosecutors.

If you find yourself arrested or charged with a crime during the hectic upcoming weeks, you’ll want to ensure that your rights are being protected in a court system swamped with similar cases. The attorney’s at Ramsay & Associates want you to know that we’re available, 24 hours a day, throughout the convention, to ensure that any illegal arrests, bogus charges, or even honest mistakes, don’t result in unconstitutional convictions or unnecessary entanglement with the court system. We’ve got a long history of standing up for individual rights against government encroachment, and plan on being there for you when you need legal representation.

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com