I reported in the past
here and
here, about CMI, the manufacturer of the Intoxilyzer's reluctance to tell the world how their machines determine and calculate the alcohol concentration in someone's breath. This calculation, of course, has the power of making someone a convicted criminal for the rest of their lives, and putting them in jail or prison.
In a brand new published opnion in Kentucky, the Court ruled that CMI must turn over the code. The original court quashed the defense's subpoena requesting the information.
Below is the opinion of the Court:
RENDERED: JANUARY 18, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000417-DG
LENNIE G. HOUSE APPELLANT
DISCRETIONARY REVIEW
v.
REGARDING FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 06-XX-00054
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: DIXON AND LAMBERT, JUDGES; ROSENBLUM, SENIOR JUDGE.1
ROSENBLUM, SENIOR JUDGE: 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.
1 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.
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 KRS2 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.
2 Kentucky Revised Statutes.
- 2 -
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 RCr3 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).
3 Kentucky Rules of Criminal Procedure.
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Thus, a subpoena may be quashed only upon a showing that compliance
therewith would be unreasonable or oppressive.4 We 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 KRE5 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
4 We note, of course, that the information sought would have to be relevant to the proceeding.
5 Kentucky Rules of Evidence.
- 4 -
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 CR6 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
6 Kentucky Rules of Civil Procedure.
- 5 -
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.
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.
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BRIEF FOR APPELLANT:
Harold L. Kirtley, II
Lexington, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Jennifer O. True
Special Assistant Attorney General
Lexington, Kentucky
AMICUS CURIAE BRIEF FOR CMI, INC.:
Allen W. Holbrook
Owensboro, Kentucky
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In a new law enacted at midnight tonight, Arizona will require all first time offenders convicted of DUI to install an ignition interlock device on their vehicles. The 