Minnesota DWI Defense

Our Blog Site Has moved

noreply@blogger.com (Angelique M.) — Mon, 01 Dec 2008 18:14:00 +0000

The DWI Defense Blog has moved! Our blog can now be found at www.MNDWIDefenseBlog.com. Please update any bookmarks you may have to stay on the cutting edge of DWI Defense in Minnesota.

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

Defective Breath Test Software Jails Innocent Drivers

noreply@blogger.com (Angelique M.) — Tue, 07 Oct 2008 18:59:00 +0000

Charles A. Ramsay has been very active in exposing flaws in the DWI/DUI breathalyzer machines in Minnesot, according to his press release issued today.

How can you argue with his passion for righting this wrong, when innocent people are getting charged with a crime that is far more sever than DWI, itself? If the Intoxilyzer 5000 cannot analyze a driver's breath, the state charges that person with the crime of DWI/DUI refusal!

The state has been aware of the problem for more than two years. Despite having a corrected version of the software, one of Governor Pawlenty's appointed officials has prevented the state lab from fixing the broken source code.

Untrustworthy crime labs are becoming commonplace. This year, government crime labs in Detroit and the State of Washington have closed or under investigation because of corruption, tampering, and negligence.

Is Minnesota's BCA next?

How can you trust the people and machines that were made and trained to prove your innocence? Imagine ... your life is now in shambles, because a faulty computer says so.

Charles Ramsay is the lawyer that you need on your side. No other Criminal Defense lawyer knows as much about this vicious machine as he does. Chuck is your smart choice -- he gets results for you.

Video of Chuck Ramsay's Minnesota Supreme Court Argument

noreply@blogger.com (Chuck Ramsay) — Mon, 06 Oct 2008 03:18:00 +0000

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.

Court: New trial for Duluth cop accused of exploiting mother - TwinCities.com

noreply@blogger.com (Chuck Ramsay) — Fri, 03 Oct 2008 16:55:00 +0000

The Minnesota Court of Appeals rejected a Duluth Trial Court Judge's order and said a complicated law is not unconstitutionally vague or ambiguous.

In the published 21-page opinion, the court finds there is no evidence to conclude the statute is subject to more than one reasonable interpretation. This is contradicted by the judge who discussed in great detail how the statute is vague.

The jurors also said the law was so comlicated, they did not understand how to interpret the meanings of some of the words and phrases. The Duluth News Tribune was able to speak with some of the jurors after the trial last fall.

"The way the law was written was so vague is why we couldn't come up with a decision,'' one jurror said. "... He was providing, and it didn't seem like Lois was out on the street hungry and homeless."

Juror Brent Gavin, 37, said "the law was very complex and, as lay people, certainly it was difficult to understand. In fact, it seemed not very clear-cut at all.'' He said jurors stumbled on the legal definition of "intent'' and what constituted Campbell's failure to provide for his mother's needs.

See the latest on this from the Pioneer Press.

Charles A. Ramsay & Associates has Moved

noreply@blogger.com (Angelique M.) — Tue, 30 Sep 2008 18:42:00 +0000

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

Lawyer Unveils Government's Efforts to Conceal Broken Source Code

noreply@blogger.com (Angelique M.) — Mon, 22 Sep 2008 15:14:00 +0000

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/

Attorneys Chuck Ramsay and Dan Koewler Complete National DWI Course

noreply@blogger.com (Chuck Ramsay) — Mon, 22 Sep 2008 04:29:00 +0000

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/

Top Minnesota Officials Conspire to Convict Innocent Drivers of DWI

noreply@blogger.com (Chuck Ramsay) — Fri, 19 Sep 2008 12:44:00 +0000

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.

MINNESOTA DWI BREATH TEST SOURCE CODE SETTLEMENT AGREEMENT DOCUMENT

noreply@blogger.com (Chuck Ramsay) — Sat, 13 Sep 2008 13:52:00 +0000

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

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

noreply@blogger.com (Chuck Ramsay) — Fri, 12 Sep 2008 22:35:00 +0000

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

http://mndwi.blogspot.com/
http://www.ramsayresults.com/

Minnesota Supreme Court Agrees to Hear Underdahl II

noreply@blogger.com (Angelique M.) — Tue, 02 Sep 2008 19:55:00 +0000

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

noreply@blogger.com (Angelique M.) — Tue, 02 Sep 2008 19:13:00 +0000

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?

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

noreply@blogger.com (Angelique M.) — Tue, 02 Sep 2008 17:37:00 +0000

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.

Republican National Convention: A Need to Protect Fundamental Civil Rights

noreply@blogger.com (Chuck Ramsay) — Tue, 02 Sep 2008 16:49:00 +0000

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

Minnesota Names Police Officers with Most DWI Arrests

noreply@blogger.com (Chuck Ramsay) — Tue, 01 Jul 2008 23:00:00 +0000

The Minnesota DPS provided a list of its "all-stars" for DWI enforcement. The DPS seems concerned more with quantity than with quality of service.

Any cop can stop a driver and make up a reason. This list recognizing cops with the greatest number of stops and arrests is disgusting. Thousands of Minnesota cops perform their jobs better than expected under harsh conditions. Yet they do so go about their duties putting justice and service to the public first, relegating their own interests secondary.

These officers are the true ALL-STARS!

They are polite with the public while ensuring that justice is served. These police officers understand sheer numbers don't ensure public safety. They testify truthfully, and take their jobs seriously. Unfortunately, they go unrecognized. This "honor" by the department of public safety discourages such bahavior, while encouraging injustice and promoting further distrust of our valuable peace officers.

Here is the DPS' press release:

From the Minnesota Department of Public Safety:

Minnesota 2008 DWI Cop "Enforcer All-Stars"

The 2008 DWI Enforcer All-Stars were selected based on DWI arrest results from 2007.

Greater Minnesota DWI Enforcer All-Stars — and Number of 2007 DWI Arrests

Officer Yermahne Berhane, Rochester PD — 74
Officer Tiffany Blaschko, Mankato Department of Public Safety — 36
Trooper Bradley Bordwell, Minnesota State Patrol — 43
Officer Brian Martin, Mankato Department of Public Safety — 51
Deputy Geoff Dowty, Sherburne County Sheriff’s Office — 109
Officer Todd Erickson, Elk River PD — 76
Officer John Fritz, St. Cloud PD — 46
Trooper Mark Hopkins, Minnesota State Patrol — 41
Officer Justin Hunt, Faribault PD — 56
Officer Scott Kostohyrz, Moorhead PD — 64
Deputy Charles Lahman, Cass County Sheriff’s Office — 56
Officer Joe Miketin, Hermantown PD — 39
Officer Andy Morgan, Grand Rapids PD — 35
Officer Cory Schmitz, New Prague PD — 41
Officer Joseph Swenson, Lake Crystal PD — 17
Deputy Scott Wolfe, Blue Earth County Sheriff’s Office — 35

Metro DWI Enforcer All-Stars — and Number of 2007 DWI Arrests

Trooper Adam Flynn, Minnesota State Patrol — 208
Officer Richard Gabler, Brooklyn Center — 57
Officer Todd Groves, Eden Prairie PD — 63
Officer Josh Hunter, Corcoran PD — 45
Officer Joel Horazuk, Apple Valley PD — 49
Officer Adam Jacobson, Coon Rapids PD — 113
Trooper Kyle Klawiter, Minnesota State Patrol — 196
Officer John Kolar, Shakopee PD — 54
Officer Scott Langner, Maplewood PD — 82
Officer Nicki Marquardt, Shakopee PD — 67
Officer Justin Parranto, Inver Grove Heights PD — 69
Deputy Tim Samuelson, Dakota County Sheriff’s Office — 50
Officer Fran Schmitz, Woodbury PD — 86
Officer Richard Schwab, South St. Paul PD — 86
Officer Darcy White, Prior Lake PD — 63
Officer Steve Wuorinen, Minneapolis PD — 60

The state patrol said it is providing even more DWI / DWI Patrols on Minnesota Roads Throughout July.

Minnesota AG Encouraged Concealment of Intoxilyzer's Critical Defects

noreply@blogger.com (Chuck Ramsay) — Fri, 06 Jun 2008 07:01:00 +0000

Minnesota DWI Lawyer Exposes "Smoking Gun" Proving Need for Software Review

Criminal Defense Attorney Chuck Ramsay announced today that he will intercede in the Minnesota Department of Public Safety’s federal lawsuit against Intoxilyzer manufacturer CMI of Kentucky, Inc.

In March 2008, The Minnesota Attorney General filed a federal suit against CMI on behalf of the Minnesota’s Commissioner of Public Safety. The suit alleges that CMI breached the contract for the sale and maintenance of a fleet of evidentiary breath test instruments to be used by the State, for the purpose of investigating and prosecuting drunk driving cases.

CMI agreed in the contract to sell and maintain the fleet of instruments and to release the software when ordered by the courts. CMI also expressly agreed that any intellectual property material originating and arising out of the contract would become the sole property of the State. CMI breached both of those obligations.

Ramsay believes the state filed suit only in response to judges’ complaints of the attorney general’s lackluster response to aggressive litigation by leading criminal defense attorneys demanding access to the software.

Ramsay states that as early as 2006, the Minnesota Bureau of Criminal Apprehension (BCA) knew its 200 plus Intoxilyzers were broken. Minnesota’s Intoxilyzer 5000 displays a driver’s alcohol results on its LED readout, yet sporadically records a higher result on the final test record. The state discovered this and other fatal defects after hastily installing the current Intoxilyzer software in 2005. The BCA documented the critical errors in an email it sent to CMI.

Ramsay labeled the document the “smoking gun,” which evidences the need for independent review of the Intoxilyzer’s software.

Despite the critical flaws, the State continues to use the bug-riddled software as the foundation of its breath testing program. According to the BCA’s 2006 annual report, the state tested nearly 34,000 citizens with the current Intoxilyzer and software.

The BCA has not fixed the broken machines on the advice the AG’s office according to one BCA source. The AG, fearing an escalation in the so-called source code challenge, advised the BCA to wait until the software challenge had lost momentum. Concealing the information was essential to winning the software battle against defense attorneys.

Ramsay is intervening on behalf of four of his clients in the federal lawsuit the state filed against the manufacturer. “Its clear the AG will not protect the rights of Minnesotan’s in that law suit. I’m intervening to ensure justice prevails. Otherwise, the AG will use this case only for appearance.”

“These black boxes not only deprive citizens’ of their right to drive, but also wrecks lives and puts innocent people in jail. The Minnesota Attorney General, our state’s chief prosecutor, chooses to protect the interests of a secretive, foreign company rather than fight for the constitutional rights of Minnesota citizens. Most alarming, is that the AG encouraged the cover-up of a fatally flawed breath machine, a contraption that the public, police and courts believed, and still believe, to be 100% accurate.”

Ramsay demands the state shut down its breath testing program immediately. Until the state fixes the errors and a reputable, independent agency certifies the machines to be scientifically valid, reliable and accurate, the test results are worthless.

If the state is trying to use an Intoxilyzer test to take your license or put you in jail, contact Chuck Ramsay immediately. With his knowledge, experience and skill, he can restore your license, liberty and dignity.

Charles A. Ramsay
Attorney at Law
http://www.ramsayresults.com/CM/Custom/Contact.asp

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

http://www.ramsayresults.com/

Judges Find Washington Crime Lab Untrustworthy

noreply@blogger.com (Chuck Ramsay) — Tue, 27 May 2008 09:11:00 +0000

Look what my brothers and sisters have accomplished in Washington!

Through hard work, perseverance and a little help from the government, DWI - DUI lawyers have exposed the crime lab. Judge's found the scientists' work to be so unreliable, they threw out hundreds of tests.

The Minnesota BCA may be headed the same direction. Stay tuned for critical DWI-DUI update of the Minnesota Intoxilyzer 5000 software update! Anyone with a DWI in Minnesota should be prepared for information which may help them beat the breath test machine!

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

156 DUI Cases Dropped Due To Cop's Alleged Lying

noreply@blogger.com (Chuck Ramsay) — Mon, 21 Apr 2008 04:53:00 +0000

Officer Accused Of Falsifying Police Reports For DUI Suspects

CHICAGO (STNG) ― The Cook County state's attorney's office has dropped more than 150 DUI cases in which indicted Chicago cop John Haleas was the arresting officer, officials said.

In all, 156 misdemeanor DUI cases have been dropped, said John Gorman, a spokesman for the state's attorney. In some of the cases, non-DUI charges against the defendants remain, he said.

Haleas, 37, faces felony charges of perjury, official misconduct and obstruction of justice for allegedly lying and falsifying reports about a DUI arrest in April 2005. According to a grand jury indictment, Haleas falsely reported he gave a defendant various field sobriety tests.

Haleas also has been sued in federal court by a man he arrested.

Haleas worked out of the Grand Central District. When questions about his arrests arose last year, the state's attorney's office dropped about 50 cases and said about 500 were being reviewed.

The Schaumburg-based Alliance Against Intoxicated Motorists honored Haleas three times as the police officer with the most DUI arrests in Illinois. He has been stripped of his police powers and is scheduled to appear in court April 25.
(Source: Sun-Times News Group Wire © Chicago Sun-Times 2006.

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

2003 Tennesse Study Reveals Truth About Minnesota's DWI Program

noreply@blogger.com (Chuck Ramsay) — Sun, 20 Apr 2008 19:00:00 +0000

MINNESOTA BCA: INCOMPETENCY OR CHICANERY?

The Minnesota Bureau of Criminal Apprehension claims the software is not relevant or necessary when ascertaining whether a particular breath test machine gives results that are valid, reliable and accurate.

The Supervisor of the BCA Toxicology Division testified under oath before me that its not necessary to review the software of any instrument when evaluating whether it gives reliable, valid and accurate results. In fact, he's never heard of such a thing.

The person is either incompetent or continues to obscure the truth. See, for example, the 2003 Tennessee breath machine validation studies (Documenting that evaluation of the software is "critical" in evaluating breath test instruments).

The Tennessee studies provide additional insight into Minnesota's incompetence and/or deceitfulness. The BCA and their lawyers claim they are not sure whether any manufacturer would disclose software as part of validation studies in their most recent version of their source code propaganda.

Again, the BCA is either incompetent or less than forthcoming. The Tennessee study again documents that at least one manufacturer disclosed the software for validation studies.

Below the document is the text:

<<RFP Tenn and Validity Studies_Page_06 C.jpg>>

To: Samera Zavaro, Special Agent Forensic Scientist Supervisor

From: David Ferguson and Robert Marshall, Special Agent Forensic Scientist's

Subject: Evaluation of the Intoximeter EC/IR II, CMI Intoxilyzer 8000 and Drager Alcotest 7110 Breath Alcohol Instrument

Date: September 12, 2003

The Breath Alcohol instruments listed above were evaluated for accuracy, precision, and performance. Accuracy and precision were evaluated using a series of standard ethyl alcohol solution and a series of standard ethyl alcohol solutions containing various interferants. Performance was evaluated by placing each instrument in a field environment and using DC current in a vehicle.

The Intoximeter EC/IR II and the Drager Alcotest 7110 yielded satisfactory results on the accuracy, precision and performance tests. The CMI Inotoxilyzer 800 did not yield satisfactory results.

The controller software, a requirement of the TBI Forensic Services Division specifications is a critical part of the evaluation. Intoximeter Inc., has submitted its controller software system and has satisfied this requirement.

Recommendation: It is recommended that the Intoximeter EC/IR II instruments and software system be approved for use in the State of Tennessee's Breath Alcohol Program. The CMI Intoxilyzer 8000 and Drager Alcotest MK-7110 are not recommended for use at this time pending evaluation of their software system.

Procedure

Standard Solutions: Each instrument was evaluated using a series of ethyl alcohol standards ranging from 0.02gm% to 0.30gm% (0.02,0.05,0.08,0.10,0.20, and 0.30) prepared and analyzed with NIST Traceable material by Guth Laboratories. The NIST Traceable were certified by Guth Laboratories. Solutions containing inteferants: Each instrument was evaluated using a series of ethyl alcohol solution containing the following interfering substances: Methanol, Isopropul Alcohol Toluene and MIBK (methylisobutylketone) Guth Laboratories alcohol-water bath simulators were also utilized at this time. Mobile Using DC Current: The breath instruments were evaluated using a series of Ethyl Alcohol standards ranging from 0.02gm% to 0.30gm% and (0.02,0.05,0.08,0.10,0.20,0.30) generated by alcohol-water bath simulators certified by Guth Laboratories. Several human breath blanks were utilized. No RFI was noted.

Results

Results of the evaluation using standard solutions demonstrated the Intoximeter EC/IR II and Drager Alcotest MK-7110 were within the NHSTA specifications of plus or minus 0.005gm% or 5% whichever is greater. The CMI Intoxilyzer 8000 did not meet the NHSTA specifications.

A footnote: The 2003 Tennessee study found that CMI's Intoxilyzer 8000 was not valid, reliable or accurate.

Hmmmmm......

Contact Charles Ramsay immediately for more information about Minnesota's problematic breath testing program.

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

Minnesota BCA Memo Reveals Source Code Is Critical to Breath Test

noreply@blogger.com (Chuck Ramsay) — Sun, 20 Apr 2008 16:01:00 +0000

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

noreply@blogger.com (Chuck Ramsay) — Thu, 17 Apr 2008 22:48:00 +0000

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
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Former Gophers player Jones acquitted of rape charge

noreply@blogger.com (Chuck Ramsay) — Sun, 13 Apr 2008 11:00:00 +0000

Find a job you love and you'll never work a day in your life."

Although I am passionate about my work, particularly trials, trial is exhausting. It takes a little chunk of life out of me each time, particularly when their are two prosecutors; one at the state's counsel table and another wearing a black robe. Judge Rosenbaum has a reputation for being fair, and is one of the better judges in Hennepin County. But some laws force judges to make rulings which may not guarantee a defendant a fair trial.

Well-intentioned legislatures passed some evidentiary laws in an effort to protect crime victims. Designed to protect one party, these laws often deny another -- those accused of a crime -- fundamental constititional rights; due process, right of confrontation, right to present a defense and even presumption of innocense.

It appears that may have occurred here, despite Judge Rosenbaum's best efforts to be fair.

Former Gophers player Jones acquitted of rape charge
By ROCHELLE OLSON, Star Tribune

April 11, 2008

Former University of Minnesota football star Dominic Jones was cleared Friday of a more serious rape charge but was convicted of unwanted sexual contact in an incident captured on a cell phone video.

He will be sentenced May 29.

Jones, 21, declined to comment after the decision, saying he wanted to catch up on his studies. Jones has missed school since jury selection began March 31. Although the star defensive back was kicked off the team when he was charged last July, Jones remained in school and is on track to graduate in the fall with a degree in sociology.

Jones had been charged with third-degree sexual assault for having sex with an 18-year-old woman who prosecutors said was too drunk to give consent. If he had been convicted of that charge, which involves penetration, he could have faced four years or more.

His conviction for fourth-degree criminal sexual conduct, which involves unwanted sexual contact, carries a presumed sentence of 24 months "stayed." That means he would not have to serve it unless he violated his probation.

Defense attorney Earl Gray said Jones could face a year in jail, but would likely get work release and be out sooner. He would have to register as a sex offender.
Prosecutor 'pleased'

The jury's decision was clearly not the outcome sought by Hennepin County Attorney Mike Freeman's office, but Assistant Hennepin County Attorney Martha Holton Dimick gave it a good spin. She said Jones was convicted of a felony, she was "extremely pleased" and "a win for the defendant would have been an acquittal on all two counts and that didn't happen." She said prison is "still on the table."

Gray said he, Jones and Jones' family were "very happy" with the verdict. He dismissed the prosecution's claims of a win, saying that last fall Freeman's office rejected his offer to have his client plead guilty to fourth-degree sexual conduct.

Gray intends to appeal the verdict and seek a second trial. He said the evidence excluded at trial goes to the heart of the charge with which Jones was convicted.

Hennepin County District Court Judge Marilyn Rosenbaum did not allow Gray to call a sexual behavior expert, or to present evidence that the woman had sex with three other players that night, or describe what Jones was told by his upstairs neighbor Alex Daniels or to call a sexual behavior expert.

"The next time we try it, we will be able to give the jury a full picture of what happened that night," Gray said.

Jurors began deliberations late Wednesday and by mid-afternoon Thursday had acquitted Jones of the more serious charge, according to their verdict form. They reached a verdict at midday Friday on the lesser charge.

After the verdict was read, jurors were sent back to consider two more questions about aggravating factors. The jury quickly decided the act Jones performed was "humiliating and demeaning" to the woman, but not "cruel."

The star for the prosecution was a 30-second cell phone video recorded by Daniels. It shows Jones smiling and masturbating over the face of an impassive woman. At the end of the video, she had a white substance on her face. The time stamp on the video: 2:50 a.m. on April 4.

Juror's point of view

Juror Nevin Ozturk, who works at Medtronic, said the video was too short for conclusions. "I see commercials or parts of the movie, I can't claim I've seen the movie," she said.

Ozturk said a defining moment for her was DNA evidence, when a prosecution witness struggled to describe what was inside an evidence envelope he had signed.
Gray raised issues with the handling of evidence, including the nine condoms found in wastebaskets at the apartment. Several of the condoms were placed into one bag. The clothes of the victim also were placed together in a single bag.

Asked about Jones' own testimony, in which prosecutors exposed lies from his initial interview with police, Ozturk said there was "a lot of 'he said, she said'" at the trial.
The incident last April started with former players Robert McField and E.J. Jones driving to St. Paul to pick up Laquisha Malone, a woman McField met on Facebook. Malone wanted her friend to come along so they went to the College of St. Catherine to pick her up.

They went back to the apartment McField and E.J. Jones shared with Alex Daniels and Keith Massey at University Village. Jones, who is not related to E.J. Jones, lived a floor below them.

The woman, who attended the trial only to testify, got into a vodka shot-drinking contest with McField. She said she remembered nothing of the evening beyond falling asleep on the couch and waking the next morning with a white substance on her face. She washed it off, went home and to work.

McField, who is now in prison in Missouri for armed robbery, said he walked into a dark bedroom and saw Jones appearing to have sexual intercourse with the woman. He said he then saw Jones pull off his condom and finish the act on her face. The video, however, showed no penetration and Jones' semen was not found on any of the used condoms in the apartment.
Jones said he did not have sex with the woman except to masturbate over her, which he testified was consensual.

No one else was charged in the case and only McField was called to testify.

Asked whether the other players -- E.J. Jones, Massey and Daniels -- might be charged, Holton Dimick said, "Let's take that one step at a time."

Rochelle Olson • 612-673-1747

© 2008 Star Tribune. All rights reserved.

Kentucky Court of Appeals Orders Disclosure of Source Code

noreply@blogger.com (Chuck Ramsay) — Sun, 13 Apr 2008 01:29:00 +0000

Kentucky Appellate Court Orders Disclosure; Many Minnesota Judges Still Protecting CMI and BCA

House v. Kentucky (2008)

The push for disclosure of the source code is gaining momentum. Courts from around the country are requiring production of the software, including our own Minnesota Supreme Court.

Below is the Kentucky Court of Appeals case requiring CMI to disclose the source code. In doing so, the court finds: the source code is relevant and not unduly burdensome to produce.

The source code operates every function of the Intoxilyzer 5000 -- from ensuring that all the necessary "fail safes" are performed to determining the alcohol concentration in the sample. Clearly the source code is relevant to DWI/DUI defense.

Why?

Why then do many Minnesota judges refuse to order disclosure of the source code citing relevance?

Here's the Kentucky Case:

House v. Kentucky, --- S.W.3d ----, (Ky.App., 2008)

Court of Appeals of Kentucky.

Lennie G. HOUSE, Appellant
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2007-CA-000417-DG.

Jan. 18, 2008.

Background: Defendant charged with operating a motor vehicle while under the influence of alcohol with the aggravating circumstance of having an alcohol concentration of 0.18 or more issued a subpoena duces tecum to manufacturer of the breath test instrument used to test him, seeking production of the computer source code of the breath test instrument.

The Fayette District Court granted the Commonwealth and manufacturer's motions to quash the subpoena, and defendant entered a conditional guilty plea. Defendant appealed. The Fayette Circuit Court, Kimberly N. Bunnell, J., affirmed the district court's order granting the motions to quash. Defendant appealed.

Holding: The Court of Appeals, Rosenblum, Senior Judge, held that compliance with subpoena was not unreasonable or oppressive.

Reversed and remanded.

Lambert, J., dissented and filed opinion.

Discretionary Review Regarding Fayette Circuit Court, Action No. 06-XX-00054;

Kimberly N. Bunnell, Judge.

Harold L. Kirtley, II, Lexington, KY, for appellant.

Gregory D. Stumbo, Attorney General, Jennifer O. True, Special

Assistant Attorney General, Lexington, KY, for appellee.

Allen W. Holbrook, Owensboro, KY, amicus curiae for CMI, Inc.

Before DIXON and LAMBERT, Judges; ROSENBLUM, Senior Judge.FN1

OPINION

ROSENBLUM, Senior Judge.

*1 Lennie G. House appeals from an Opinion of the Fayette Circuit Court which affirmed the Fayette District Court's granting of the Commonwealth of Kentucky and CMI, Inc.'s, (CMI) motion to quash a subpoena issued by House to CMI requiring CMI to produce the computer source code of its breathalyzer instrument, the Intoxilyzer 5000. For the reasons stated below, we reverse.

On March 8, 2006, House was charged with operating a motor vehicle while under the influence of alcohol with the aggravating circumstance of having an alcohol concentration of 0.18 or more. See KRS FN2 189A.010. Following his arrest, House was given a breathalyzer test using an Intoxilyzer 5000 instrument, which is manufactured by CMI, Inc.

On July 28, 2006, House filed a discovery motion requesting that the Commonwealth provide various information. Among the information requested was the computer source code for the breathalyzer instrument used on House, the Intoxilyzer 5000EN, Serial Number 68-011299.

After the Commonwealth failed to produce the requested source code, House issued a subpoena duces tecum to CMI seeking production of the code. In response, both the Commonwealth and CMI filed a motion to quash the subpoena. House, in turn, filed a motion to suppress the breathalyzer results for failure to comply with the subpoena.
A hearing on the motions to quash was held on August 8, 2006, at which time House produced a computer software engineer, Jeremy Riley, who testified that if the source code for the instrument were produced, he could examine the code for any "bugs" or flaws in the code's logic which may be contained therein, and which as a result may produce an incorrect blood alcohol reading.

On September 1, 2006, the district court entered an opinion and order granting the Commonwealth and CMI's motions to quash the subpoena. House subsequently entered a conditional guilty plea pursuant to RCr FN3 8.09, reserving for appeal the issue of the district court's granting of the motions to quash the subpoena for CMI to produce the Intoxilyzer 5000 computer code. On January 24, 2007, the Fayette

Circuit Court entered an opinion affirming the district court's order. We subsequently granted discretionary review.

Before us, House contends that the district court erred in granting the Commonwealth and CMI's motions to quash his subpoena seeking the Intoxilyzer 5000 computer code. We agree.

RCr 7.02(3) provides as follows:

(3) A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys. (Emphasis added).

*2 Thus, a subpoena may be quashed only upon a showing that compliance therewith would be unreasonable or oppressive.FN4We do not believe the Commonwealth and CMI have made this showing.

The request is not unreasonable because its purpose is to challenge the validity of the breath alcohol readings produced by the Intoxilyzer 5000 instrument which is anticipated to be used at trial in support of the Commonwealth's DUI charge against House.

The reading was also used to support the aggravating factor of driving with a breath alcohol reading of .18 or more. Under KRE
FN5 401, evidence is relevant if it has any tendency to render the existence of any consequential fact more or less probable, however slight that tendency may be. Springer v. Commonwealth, 998 S.W.2d 439, 449 (Ky.1999); Turner v. Commonwealth, 914 S.W.2d 343, 346 (Ky.1996). Relevant evidence is admissible unless excluded by some other rule. KRE 402. Because a flaw in the computer source code of the Intoxilyzer 5000 would be consequential to the accuracy of the reading intended to be relied upon by the Commonwealth, such evidence is relevant and admissible. Accordingly, requesting the computer code to test the verity of the readings produced by the instrument is not unreasonable.

Moreover, the burden upon CMI in producing the code is not oppressive. The record discloses that the code could be copied to a cd rom computer disc and produced in that form at minimum expense. It appears that the only other requirement would be that the passwords to access the code would need to be supplied. Thus, the burden of providing the information is minimal and the expense de minimis.

Thus, upon application of the test as set forth in RCr 7.02(3), we believe that the movants have not met their burden of demonstrating that complying with the subpoena would be unreasonable or oppressive, and, accordingly, we also conclude that the district court erred in quashing the subpoena.

Based upon our disposition above, we need not discuss the other arguments raised by House in support of reversal.

The Commonwealth and CMI argue, however, that the computer code is a protected trade secret and that this should weigh against disclosure. However, House has expressed his willingness for he, his attorney, and his expert witness to enter into a protective order stipulating that the code or its contents are not to be shared with any party outside of the case. The district court is authorized to enter such orders in accordance with CR FN6 26.03.

We further note that the order may provide that any copies or work product generated as a result of the software engineer's review be returned to CMI upon completion of the review. As civil and/or criminal penalties could result from the disclosure of the code to other parties, such a protective order should obviate any concern CMI may have with respect to protection of its source code.

Citing Commonwealth v. Rhodes, 949 S.W.2d 621 (Ky.App.1996), Commonwealth v. Wirth, 936 S.W.2d 78 (Ky.1996), Commonwealth v. Roberts, 122 S.W.3d 524 (Ky.2003) and Commonwealth v. Walther, 189 S.W.3d 571 (Ky.2006), the Commonwealth and CMI also argue to the effect that the Intoxilyzer 5000 has been previously accepted as scientifically reliable in various appellate court cases, and thus the verity of the Intoxilyzer 5000 has already been determined to be established. A review of these cases, however, discloses that the issue herein was not squarely addressed in any of those cases.

We find nothing in those cases which provide that the computer source code of the Intoxilyzer 5000 is above challenge. As such, we are unpersuaded by this argument.

*3 In its brief, citing United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) and the parallel federal rule, CMI argues that the subpoena served upon it by House was procedurally deficient because RCr 7.02(3) requires that a defendant file a motion for the court's approval to issue the subpoena and that there be a hearing thereon. We have previously set out the text of RCr 7.02(3). See pg. 3, infra.A review of the text of the rule discloses no such requirement as asserted by CMI. Accordingly, we will not read such a requirement into the rule.

For the foregoing reasons the judgment of the Fayette Circuit Court is reversed and remanded for additional proceedings consistent with this opinion.

DIXON, Judge, Concurs.
LAMBERT, Judge, Dissents and Files Separate Opinion.
LAMBERT, Judge, Dissenting:

Respectfully, I dissent and would affirm the judgment of the Fayette Circuit Court in its entirety.

FN1. Senior Judge Paul W. Rosenblum, sitting as Special Judge by Assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
FN2. Kentucky Revised Statutes.
FN3. Kentucky Rules of Criminal Procedure.
FN4. We note, of course, that the information sought would have to be relevant to the proceeding.
FN5. Kentucky Rules of Evidence.
FN6. Kentucky Rules of Civil Procedure.
END

Is This America's Best Prosecutor?

noreply@blogger.com (Chuck Ramsay) — Sat, 12 Apr 2008 22:09:00 +0000

As a busy criminal defense lawyer, I see examples of prosecutorial misconduct nearly every day. This usually arises out of a "convict at all costs" mentality.

Here is a excellent story from Reason Magazine about a Texas prosecutor -- and former criminal defense lawyer -- who intends to change that.

Is This America's Best Prosecutor?

Meet Dallas County District Attorney Craig Watkins.
Radley Balko April 7, 2008

In 2006, Craig Watkins became the first African-American elected district attorney of any county in Texas history. More interestingly, the 40-year-old Watkins was elected in Dallas County, where the DA’s office has long been known for its aggressive prosecution tactics.

A former defense attorney, Watkins says the Dallas DA’s office has for too long adopted a damaging “convict at all costs” philosophy, an argument bolstered by a string of wrongful convictions uncovered by the Texas Innocence Project in the months before he was elected. Watkins ran on a reform platform, and pulled out a surprising victory against a more experienced Republican opponent.

After taking office, Watkins dismissed nine top-level prosecutors in the office. Nine others left voluntarily. He established a “Conviction Integrity Unit” to ensure proper prosecutorial procedures, and began working with the Texas Innocence Project to find other cases of possible wrongful conviction.

reason Senior Editor Radley Balko recently interviewed Watkins by phone.

reason: What inspired you to not only not put up obstacles to a group like the Texas Innocence Project, but to actually work with them proactively to seek out wrongful convictions in Dallas?

Watkins: We had had several exonerations here in Dallas County before I was elected. So as a result of that, we felt it was something we needed to look into, to see if anyone else we may have prosecuted in this county was wrongfully convicted. We take seriously our charge by the code of criminal procedure to “seek justice.” That’s one our responsibilities, to make sure innocent folks aren’t convicted. And we find they are or have been, we have to do everything we can to rectify the problem.

reason: How should a prosecutor balance his time and resources between prosecuting present-day cases and looking for cases of wrongful conviction?

Watkins: Well, before we got here, there was no one working on innocence cases. So there was no balance, because no one was doing it. We just decided to start a whole new section of the office dedicated solely to innocence. And they’re not only looking for bad convictions, they’re also looking at what policies and procedures we can put in place to keep them from happening in the future. So we aren’t really taking time away from prosecutions. We’ve just added positions that didn’t exist before.

reason: What specific steps did you take after winning office to address this issue?

Watkins: The first thing we did was set up this “Conviction Integrity Unit” in the district attorneys office. We immediately staffed it with two attorneys and two investigators, and told them to look at 400-some-odd cases for which there was DNA available to test. So their responsibility right now is to look through those 400 cases to see if there’s reason to suspect a wrongful conviction. If they find cases, we’ll then collect the DNA and test it. If it shows the person in prison is innocent, we’ll start proceedings for an exoneration.In addition to that, the unit has the responsibility of training the younger lawyers here in the office on the ethical side of a prosecutor’s job—things like the importance of properly dealing with exculpatory evidence. And we intend to have this section here in this office forever. This is not a pilot program. It’s something I’d like to see spread across the country—where DAs will actively seek out convictions that were obtained unfairly.

reason: What are some common stakes you’re seeing repeated in these innocence cases? Do they tend to be willful mistakes, or more due to negligence?

Watkins: It’s a combination of things. Negligence, prosecutorial misconduct, faulty witness identification. It’s just been a mindset of “conviction at all costs” around here. So we changed that philosophy. We aren’t here to rack up convictions. We’re here to seek justice. Once we can get over that win at all costs mentality, I think we’ll see fewer and fewer of these wrongful convictions.

reason: You talk about the mindset of winning convictions at all costs. The legendary law-and-order Dallas prosecutor Henry Wade, who held the job you now hold for many, many years, embodied that philosophy. He’s known to have actually boasted about convicting innocent people—that convincing a jury to put an innocent man in jail proved his prowess as a prosecutor.

Watkins: Oh yeah, it was a badge of honor at the time—to knowingly convict someone that wasn’t guilty. It’s widely known among defense attorneys and prosecutors from that era. We had to come in clean out all the remnants of that older way of thinking.

reason: It’s hard to imagine anyone opposing what you’re doing—seeking out and freeing the wrongfully convicted. Do you have critics?

Watkins: We’re encountering a lot of criticism right now. I think a lot of it is motivated by political party. The Republicans are losing power in Dallas County, and they’re trying to regain it. So they’re doing whatever they can, even making the political mistake of attacking the work we’re doing on wrongful convictions.reason: What possible arguments could they make against freeing innocent people?Watkins: Initially, their argument was that it’s not the role of a prosecutor to look for bad convictions—that that’s the role of a defense attorney. But that didn’t work very well for them. And it’s wrong. Both the criminal code of the state of Texas and the American Bar Association’s code clearly state that the job of a prosecutor is to seek justice. That means if a person is guilty, you try to convict him. If he’s not, you don’t. And if you have reason to believe someone has been wrongly convicted, you have a responsibility to fix that.

Their new argument is, “Is this cost effective?” Is this unit we’ve created a net benefit for Dallas County? I guess my response to that is that if we find even one more person who has been wrongly convicted, then yes, it is cost effective. So I think their arguments are off base. And they’re going to have a hard time convincing the public that what we’re doing isn’t necessary.

reason: Dallas County has the highest exoneration rate in the country. That’s in part because of a fluke. In the 1980s, the county started sending biological evidence to a private lab to be tested. That lab kept all of the evidence pretty well preserved, enabling it to be used in DNA testing today. So Dallas is one of the few places in the country where evidence from that era can still be tested. Do you think the system in Dallas was particularly corrupt or broken to cause all of these wrongful convictions, or would we be seeing the high numbers of exonerations we’re seeing in Dallas all over the country if similar efforts had been made to preserve evidence in other places?

Watkins: I think it’s mostly because evidence was preserved in Dallas. I don’t think there was anything unique about the way Dallas was prosecuting crimes. It’s unfortunate that other places didn’t preserve evidence, too. We’re just in a unique position where I can look at a case, test DNA evidence from that period, and say without a doubt that a person is innocent. They can’t do that in other places. But that doesn’t mean other places don’t have the same problems Dallas had.

reason: Your approach to your job is unique enough that it’s earned you some headlines. What do you think about the way we look at the role of a prosecutor today? Are the incentives too geared toward rolling up convictions?

Watkins: Well we’ve obviously had this political mantra over the last 30 years about “getting tough on crime.” And I think too often, buried in that mantra is the implication that there’s no room for fair justice. We’ve stripped away protections for the accused. And as a result, I think many prosecutors went into a case with blinders on—like everyone was guilty. The more convictions you won, the better your chances to get re-elected or to move on to higher office. We’re now seeing the fallout from that mentality. Hopefully, the problems we’re now encountering will help it to change.

reason: What reforms or checks should DA’s offices put in place to guard against wrongful convictions?

Watkins: Well you know police departments file cases with us. We need to guard against being a rubber stamp for every case the police department sends our way. We need to be more skeptical. We also need to train prosecutors to think about their jobs in a different way. We shouldn’t be judging young prosecutors by how many convictions they win, or by how many people they put in jail. I’d also like to see a change in the way appellate courts look at these cases. Appellate courts are often too reluctant to second-guess a jury. But if there’s evidence there that makes you question whether the jury got it right, I think they need to be more willing to open their minds and take that second look.

reason: But it’s established law in most places that appellate courts give considerable deference to the jury’s verdict. When they do intervene, it’s generally on procedural issues. They tend to pass on actually reviewing the evidence in a case. Seems like a tall order to change that.

Watkins: I think the mere fact that we’ve had so many exonerations ought to move them to take a closer look at the evidence in criminal cases. You’re right that cases are generally appealed on technical issues. But take eyewitness identification. It’s been proven time and time again in studies that eyewitness identification is extremely unreliable. Yet police, prosecutors, and juries still tend to put a lot of faith in them. And these same studies show there are some basic steps you can take make eyewitness identifications more reliable, but that also would result in fewer identifications, and fewer prosecutions. But if there are procedures available to increase the validity of a form of evidence, and police and prosecutors aren’t using it, then they’re deliberately increasing the chances of a wrongful conviction in order to get more convictions. And defendants aren’t getting a fair trial. And I think that’s something the appellate courts ought to look at.You also have to look at changes in technology. We have new methods and procedures that are better and more reliable than the old way of doing things. But the law tends to be static. If we’re consciously not using the methods proven to be more effective and more reliable, we’re not giving defendants the fairest possible trial. Appellate courts should be looking at that, too.

reason: Given the novel approach you’ve taken to the job, what are your prospects for getting reelected?

Watkins: Oh, I don’t know. I mean, I don’t think about it all that much. I go into my job looking to make sure we administer justice in a fair way. I hope my record will speak for itself. I hope people will see that we take a balanced approach, here. We convict the guilty, and we free the innocent.

I’d hope that that’s what people would ask from a district attorney, and from a fair criminal justice system.

Radley Balko is a senior editor for reason.

http://www.reason.com/news/show/125596.html

Judge and Wife Allege Harassment by Minneapolis Police

noreply@blogger.com (Chuck Ramsay) — Tue, 08 Apr 2008 02:29:00 +0000

City Pages

Issue — February 27, 2008

By Paul Demko

MPD blues: James and Lois Cannon want an apology from the cops

Image by Craig Lassig

Around 10 p.m. on September 5, 2006, James Cannon, his wife Lois, and their 22-year-old son, James Jr., climbed into the family's PT Cruiser and drove to the Wrecker Services impound lot in downtown Minneapolis. Earlier in the day, their son's car, a green Ford Contour, had been towed for being parked illegally in the West Bank neighborhood.

At the impound lot office, a cramped space with all the charm of a prison visiting room, the Cannons forked over $250 and waited for the car. After about 15 minutes, the African American family was joined by a quartet of African immigrants whose vehicles had likewise been seized. They too paid their fines and awaited their cars.

Then the group was informed by the dispatcher that one of the company's tow trucks had broken down, and that the other driver was out on a run. Everybody would just have to sit tight.

After half an hour, one of the immigrants grew agitated. He twice banged on the Plexiglas enclosing the tow-truck dispatcher.

A few minutes later, a Minneapolis Police Department squad car arrived on the scene. A pair of cops entered the waiting area and disappeared into the dispatcher's office. When the officers emerged, the relatively low-key scene changed dramatically.

The white female officer, Julie Casper, immediately began yelling at the group of predominantly middle-aged black folks. "The next person to touch the Plexiglas, swear, or raise their voice will go to jail for disorderly conduct," Casper purportedly bellowed at the group. "I want you all to shut up and behave yourselves."

The Cannons were taken aback by the hostility. Lois attempted to make the case that it wasn't necessary for the officer to use such a belligerent tone. The response from Officer Casper: "I will use whatever tone I damn well please."

James attempted to intervene, explaining to the officer that they'd been waiting for close to an hour. This tack didn't work either. "I don't care if you've been waiting four days," the officer yelled back.

At this point the Cannons decided to leave. Lois wrote down the female officer's badge number and informed her that they'd be filing a complaint regarding her conduct.

"It was very intimidating," recalls Lois. "It was like out of a movie. To the point where you didn't feel safe being in that room with her doing what she was doing."

As the Cannons prepared to drive out of the Wrecker Services lot, the white male officer, Michael Meath, made a show of writing down the family's license plate number. The Cannons viewed this as a not-so-subtle threat.

"There was no reason for him to take our license plate," James says. "It wasn't our vehicle that had been impounded. We hadn't done anything wrong except to say we were going to go file a complaint."

Which they did. The family drove directly to the First Precinct police station in downtown Minneapolis and related their concerns to the sergeant on duty. They then filed a complaint with the city's civil rights department alleging that they'd been the victims of discriminatory treatment by the cops. They filed a similar grievance with the Minneapolis Civilian Review Authority (CRA).

This incident might have been just a footnote in the long chronicle of unfriendly interactions between the MPD and the city's black residents, but in this instance, the cops picked on the wrong family. James Cannon is a 56-year-old judge with the Office of Administrative Hearings and a retired Army lieutenant colonel. He also spent a decade serving on the city's Civil Rights Commission. His wife is a registered nurse and midwife. Their son is a student at the University of Minnesota.

"I just can't see her talking to a small group of mostly middle-aged, older white people and yelling and screaming at them like that," says James, a courtly man with a head of gray hair and a neatly trimmed moustache. "If a police officer acts like this in a non-threatening, non-hostile situation, what is she going to do in a real hostile situation? Draw her gun unnecessarily?"

In responding to the complaint, Officer Casper told an investigator with the city's civil rights department that she believed the harsh tone was necessary to control the crowd at the impound lot. But James Cannon bristles at this excuse. "I guess more than two black people constitutes a crowd," he says. "We weren't yelling and screaming. There was nothing to control."

In January, the civil rights department determined that probable cause existed that both officers had acted in a discriminatory manner. The two sides are now in a conciliation period, in which they'll try to reach an agreement on remedies. The Cannons are seeking a written apology from both officers, as well as a note from Police Chief Tim Dolan acknowledging that their conduct was out of line. The Cannons also want a letter of reprimand placed in each officer's personnel file and unspecified monetary damages. (The MPD did not return phone calls seeking comment.)

If the MPD isn't willing to take those actions, the Cannons may file a civil rights lawsuit. "We're not trying to make a federal case out of this," James says. "But we're going to see it through to the end because we feel that strongly about it."

Url: http://articles.citypages.com/2008-02-27/news/judge-and-wife-allege-harassment-by-minneapolis-police/
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