Video of Chuck Ramsay's Minnesota Supreme Court Argument

Chuck Ramsay argued State of Minnesota v. Netland on September 10, 2008. The Minnesota Supreme Court must decide the constitutionality of the state's DWI-DUI statute which criminalizes refusal to submit to an alcohol test.



The issue is particularly difficult because Ms. Netland did not refuse to submit to a test. The breath test machine -- Intoxilyzer 5000 -- would not accept her breath sample. The police officer believed she was "playing" with the machine. Ms. Netland was persistent and demanded a blood test. The officer refused to give her either a blood or urine test.

Not willing to give up, Ms. Netland called an independent testing company while still in jail. The company collected her alcohol sample and had it analyzed. The result: .03 -- well under the legal limit of .08!

We now know that the source code was to blame. See the sections about Inferno and Smoking Gun. Unfortunately, state officials continue to use the same broken software. Innocent people continue to be hurt.

Minnesota BCA Memo Reveals Source Code Is Critical to Breath Test

The fight over the Intoxilyzer source code in Minnesota continues to become more heated. With the information I've obtained, the BCA agents behind Minnesota's breath test machine should become redder in the face -- due not only to the increasing heat, but in response to documents revealing more of the state agency's half-truths.

The BCA toxicologists and their supervisors have repeatedly testified -- under oath -- that the software is not important (among other misleading statements) to the outcome of Intoxilyzer tests. The well-intentioned, but mis-guided, assistants attorney general regurgitate the government propaganda to judges when arguing against drivers' motions for discovery of the software. Unfortunately some Minnesota judges apparently buy the government mantra and rule against drivers' request to analyze the source code, depriving them of fundamental constitutional rights (e.g., Right to Present a Meaningful Defense, Confrontation, and Due Process).

Amazingly, these judges make Findings of Fact that the software does not "relate to the guilt or innocence" of those accused of drunk driving.

Here is a memo the BCA once published on its website:

BCA Source Code Memo to Judges, Prosecutors and Police Officers

On February 4 the Office of the Minnesota Attorney General learned of the admissions contained in the memo. It was then promptly removed and edited, deleting the language that contradicted the government's standard line.

Here is a link to the most recent edition of the state crime lab's sterilized version.

Some judges continue to side with the Intoxilyzer's manufacturer and against Minnesotans. Why? To protect CMI's profits? To avoid the inconvenience of granting the requests? Grave concern over what defense experts will find behind the black curtain?

While we may never know their motives, we do know their justification is absurd.

1. The Intoxilyzer will not operate at all without the source code;

2. The source code controls operation of every aspect of the Intoxilyzer -- from ensuring minimum scientific safeguards are employed, to analyzing the breath sample and determining the alleged alcohol concentration;

3. The BCA acknowledges/ed that the source code is "important" to the machine's operation.

How can anyone find the software does not "relate to the guilt or innocence " of a driver when the BCA has admitted the source code is "important" to the Intoxilyzer's operation? The secret machine that determines the drivers' guilt?

If you have been charged with DWI/DUI or test refusal in Minnesota, you can prevail with the right attorney. Contact Chuck Ramsay right away to learn what the Attorney General and BCA don't want you to know.

Charles A. Ramsay
Attorney at Law
Charles@RamayResults.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

Driver Loses Source Code Appeal; Attorney Fails to Make Minimal Showing

The Minnesota Court of Appeals rejected a driver's appeal to order the state to disclose the "source code" which operates the state's breath test machines. See State v. Olcott, (Minn. Ct. App., 4/15/2008).

In emphasizing the low standard on the driver to meet his burden, it noted the driver's attorney did nothing more than make a bald assertion that the source code is related to the case.

"We have no quarrel with Olcott’s underlying propositions that an accused should be allowed to examine the evidence against him and, generally, he should be allowed to discover information that could lead to admissible evidence. But we fully agree with the district court that Olcott has offered only a 'bald assertion' and legal arguments in support of his discovery requests.

"We find nothing in the district court record that even marginally attempts to satisfy the rule 9 'showing' requirement. Olcott has not attempted to show what a 'source code' is; or how it fits into the operation of the Intoxilyzer; or what its precise role is in regulating the accuracy of the machine; or what possible deficiencies could be found in a source code; or how significant any deficiencies might be to the accuracy of the machine’s result; or whether testing of the machine (which he is permitted to do) cannot reveal potential inaccuracies without also knowing the source code. Olcott seems to suggest that his request for the source code needs no technical explanation, that the thing speaks for itself, and that his mere assertion makes the need for the source code obvious. But this is the realm of a type of expertise beyond ordinary knowledge. Olcott implicitly concedes that fact when he argues that even the expert Intoxilyzer operators cannot testify to the method of producing the result. By presenting only argument on the discovery issue, Olcott left the district court, and this court, to speculate.

Because Olcott has made no 'showing' whatsoever of how the Intoxilyzer 5000EN source code relates to his guilt or innocence, negates his guilt, or reduces his culpability, we conclude that the district court did not abuse its discretion in denying Olcott’s motion to compel production of the source code for the machine.

Affirmed.

PRACTICE TIP:

The Minnesota Court of Appeals has recognized the standard is very low. The burden is easily met merely be presenting documentation within the public domain. The manufacturer (CMI), and the state (Bureau of Criminal Apprehension (BCA)) agree the software operates the Intoxilyzer and every essential function.

For example, look at CMI's Intoxilyzer 5000 Brochure.

CMI notes the importance of the software:

"A multiprocessor system employing a microprocessor controls the general operation of the instrument from information display to printer operation, keyboard interface, and electro-mechanical functions. A separate microcontroller is used for optical signal processing which increases the system’s signal handling.

"The microprocessor includes 56K EPROM (erasable programmable read only memory), 32K of battery-backed RAM and 8K of Scratch RAM (Random Access Memory). Additionally, the microcontroller has a separate 64K EPROM available and a separate 8K scratchpad RAM. Every aspect of operation, from displaying and printing of information to the basic electrical and mechanical functions, is micro-computer controlled.

Also click here to see the BCA's recent posting (Admitting "The source code is important because it determines what programming is loaded into the Intoxilyzer – basically, it tells the Intoxilyzer how to interpret the physical data it receives when someone blows into the device.").

Finally, look at Tennessee's Validity Studies where it calls the software "critical" to the evaluation of the product.

To ensure your rights are protected, turn to a profession who knows how to win. Contact Chuck Ramsay, Today!

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

TO COME: CONTROVERSIAL ISSUES -- WHY DOES THE GOVERNMENT ...

Soon ... articles revealing:

• Why the Minnesota BCA failed to establish any minimum routine preventative maintenance and/or calibration standards for the Intoxilyzer 5000?
• Why Minnesota's breath testing program has the lowest standards in the country?
• Why the Commissioner of Public Safety refuses to establish any minimum procedures to ensure that Minnesota breath tests are valid, reliable and accurate?
• Why is the supervisor of the BCA toxicology laboratory is afraid to review the source code (software) for the Intoxilyzer 5000?
• Why does the Minnesota Attorney General want the legislature to pass a law to prevent drivers from defending themselves in court at a trial, by making it a crime to present the source code as evidence to a judge or jury ?
• Why Minnesota is the only state in the country to use alcohol urine testing to prove a driver guilty of a crime?
• Why Minnesota BCA refuses to establish the most basic standards for urine testing, ignoring every peer-reviewed expert article in the world?
• Why the Commissioner of Public Safety continues to revoke licenses and prosecute drivers using urine testing when as one Judge recently described as a "absurd"?
• Why Attorney Chuck Ramsay is the only source of education for BCA toxicologists of peer-reviewed scientific articles?
• Why the Minnesota Attorney General continues to mislead judges, prosecutors and police officers that CMI (the Intoxilyzer Manufacturer) refused to give them the source code, when the BCA supervisory testified under oath that the BCA never had even asked for the source code?
• Why the Minnesota Attorney General and the BCA do not voluntarily disclose the errors in the Intoxilyzer's program?

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

Charles A. Ramsay & Assoc., 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

CMI Loses Appeal of Florida Fines for Refusal to Provide Source Code

CMI, the manufacturer of the Intoxilyzer 5000 EN, the breath test machine used in Minnesota, lost an appeal in Florida. It had appealed a lower court order which imposes more than $3,0000 per day for refusing to turn over the source code. The fines have totaled well into the hundreds of thousands of dollars.

If CMI refuses to disclose the source code in the name of lost potential profits, why does it continue today now that it is losing more money in fines and lost future business than it likely would if a competitor stole the software?

Could it be worried what we defense attorneys may discover in the event we were to obtain the information?

Although I have no specific information, it leads one to believe that their actions are motivated by self preservation; fearing perhaps potential personal civil liability, punitive damages or maybe even criminal charges.

I don't know, but why else would this corporation continue down this path of self-destruction?

Whatever the reason, I doubt its lost profits. That time has come and gone.

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

Charles A. Ramsay & Assoc., 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

BREATH TESTING SOFTWARE -- A LAW TO HIDE THE TRUTH?

The Intoxilyzer 5000 EN is the breath test machine currently used in Minnesota. More than 35,000 of such tests are run on Minnesota drivers every year. We DWI/DUI defense lawyers have discovered that every aspect of the machine is controlled by the software, often referred to as the source code.

The manufacturer, CMI of Kentucky, refuses to turn the software over to lawyers who seek it. Although our efforts to acquire the source code has been stymied by the Minnesota Attorney General (AG), the Commissioner of Public Safety, the Minnesota Bureau of Criminal Apprehension (BCA) and every prosecutor in the state, the AG has finally sued CMI.

But at least one state legislator is seeking to prevent drivers from using the source code as evidence in the event we're able to get it. Click here to view the bill introduced by Senator Foley.

Why does Senator Foley want to prevent drivers from presenting this in court? Does he know something we don't? What is he afraid of?

This bill, should it become law, would prevent the source code from being admitted not only at a DWI or DUI civil or criminal hearing, but it also would prevent it from being used to prove those at the BCA and CMI from civil or criminal liability.

There is growing evidence that some may be at least grossly negligent for permitting this bug-infested software to hurt Minnesota drivers and those around the country.

Is he concerned that his friends may be at risk?

S.F. No. 3718, as introduced - 85th Legislative Session (2007-2008)