North Dakota Supreme Court Denies Access to Software

By Garth O'Brien | April 17, 2008 
Filed Under DUI News

Intoxilyzer SoftwareBismarck, 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.

DUI Blog Comments

3 Responses to “North Dakota Supreme Court Denies Access to Software”

  1. citizen on April 17th, 2008 11:39 pm

    So even though the enforcement body does not have control over the software, they have to provide it to the defense? Why? So a lawyer can try to prove that his client didn’t do the thing that he knows they did?

    “A DUI defendant already has an impossible challenge over-coming the officer’s word or at times video.”

    There’s a reason it’s an impossible challenge, because they BROKE THE FRIGGING LAW! They were drunk, they were driving, yet lawyers like you have to try to find a way to throw out all the evidence so they can get off!

    The next time someone gets killed by a drunk driver who got his or her prior DUI reduced or thrown out, I hope they bring the body and dump it on the lawyer’s doorstep, so they can start seeing why these people need to be arrested AND CONVICTED.

  2. Garth O'Brien on April 18th, 2008 7:58 am


    If you really are concerned about stopping DUI, then lobby our government to require an alcohol detecting device in every vehicle operated in the United States. Do not support underhanded prosecuting tactics.

    Not every person arrested for DUI is guilty. Read all the posts on this blog. We highlight extreme cases of intoxication and destruction as well as the truly innocent individuals arrested by bad cops.

    If you were arrested by an inexperienced or bad cop, and you knew you were innocent, you would want to examine the breath test machine software too. You would want to dig into every piece of evidence in order to secure your innocence.

    Of course these are rare cases, but if you or a loved one was truly innocent of the charge you would want access.

    We can make some great software these days. They should be able to build an algorithm that can accurately measure the alcohol content, and I am sure the makers of the Intoxilyzer have created that code. Judges can review evidence “in camera.” This permits both sides to review or examine evidence the the judge’s chambers out of the public eye. That would protect the breath test machine manufacturer and protect the accused’s rights.

    If the software was faulty and produced a 0.08 reading for individuals that had not consumed alcohol, then those individuals should “get off” because they are not guilty.

    I have personally seen a case of an elderly lady in her 70’s that was arrested in Seattle. The officer described her as completely drunk. They “observed” bloodshot and watery eyes, odor of alcohol, flushed face, an inability to maintain balance and slurred speech. All the classic indicators of an impaired driver.

    The suspect blew into the breath machine and produced one sample. Upon the second attempt she could not produce enough air to trigger a sample.

    The police officer marked her as a refusal. This stripped her driving privileges for one year. The officer was too dense to realize the computer of the breath test machine stored the first sample. The results were 0.00.

    This elderly lady paid over $6,000 to hire a defense attorney. She was without a license for six months, and she had to endure the shame of being arrested and charged for a DUI. The prosecutors ultimately dismissed the case, but a lot of damage was already done.

    Had the prosecutor not dropped the case they would have asked for access to the software. Is it still okay for the government to deny access? That lady would have needed every piece of ammunition at trial to ensure her innocence.

  3. H on June 22nd, 2008 10:05 pm

    “citizen,” you are ridiculous(referring to the first comment above).

    In our country the code is supposed to be “innocent until proven guilty” and if this means testing a machine’s component parts, including the software that runs it, to make sure they are whole and working properly, then that is what it means. In many states red light cameras are now being found to be faulty, causing thousands and even hundreds of thousands of incorrect parking tickets which are almost impossible to defend oneself against. To be denied this ability is allowing the state to basically say, “We have a machine that we trust implicitly, it can never be wrong.”

    This is an absolutely unjust, Orwellian and also absurd position. This should not be allowed and should be taken to the Supreme Court of the US.