By Garth O'Brien | April 17, 2008
Filed Under DUI News
Bismarck, North Dakota. A crafty DUI defense attorney, Steven Light, in North Dakota raised an interesting legal issue, but the state Supreme Court denied the motion. DUI breath test machines utilize software to compute the test results.
In order to mount an aggressive DUI defense an experienced attorney must attack every piece of evidence and each element of the crime. It seems a no brainer for a defense attorney to request access to review the breath test machine software. Steven Light did just that. The issue states the government must hand over to the defense all evidence they rely upon to prosecute the defendant. That includes the inner workings of the breath test machine.
Light’s client Glenn Levine pleaded guilty to his DUI, but reserved the right to appeal the software issue. The North Dakota Supreme Court listened to the argument, but denied the defense’s right to have access to the software.
North Dakota’s breath test machine is the Intoxilzer, which is produced by a company based in Kentucky. The manufacturer claims the software is secret technology and refuses to grant anyone access. The company location and protective stance gave the Supreme Court an opening to deny the motion. The government or prosecution does not possess the Intoxilyzer’s software therefore they are not required to provide access to the software.
Justice Daniel Crothers wrote this in the opinion, “In our case, Levine offered no evidence that the Intoxilyzer software was created for Fargo or that Fargo owned the code. Nor did he provide evidence that Fargo was otherwise in possession or control of the computer code.”
This is a complete and utter injustice. The prosecution should not be able to hide behind state boundaries when sending someone to jail. It is the government’s burden to establish the defendant is guilty beyond a reasonable doubt. It is mandatory the government establish this threshold with sound evidence, and not with mysterious evidence that avoids scrutiny.
I am not a fan of drunk driving, but I am completely opposed to a government that can imprison a citizen in an unfair setting. A DUI defendant already has an impossible challenge over-coming the officer’s word or at times video. Preventing the defendant’s right to examine the evidence used against them is flat out wrong.