Our firm is acting as one of the lead set of attorneys representing the Source Code Coalition. The Coalition represents a group of over 2200 DWI cases that have been joined together to challenge the accuracy of the software program/source code that runs the machine.

Significant issues are coming to light involving improper source code that exists on at least some of the Intoxilyzers in use in Minnesota. On July 8^th our office filed pleadings notifying the Court of these significant issues. Formal motion hearings will likely be scheduled soon unless informal agreements can be reached with the State to provide answers to the problems uncovered by the Coalition experts. The trial on these cases is currently set for October 2010 but that may now change based upon these new source code problems that  exist.

As the source code issues are changing on a daily basis please contact us for more recent updates.

A St. Louis County judge ruled that the sherrif’s deputy who stopped Eric Nelson’s client did not have a reasonable and articluable suspicion to conduct a traffic stop.  The officer testified that he believed Nelson’s client was attempting to evade the officer.  Nelson’s client signaled a turn into a parking lot where he dropped off his friend.  Nelson’s client then turned back onto the road and passed the hidden squad car moments later.  The Court found that this conduct did not rise to level required to conduct a traffic stop.

As a client of Tina Appleby’s drove his daughter to school, his car was struck with an object thrown by a teenage pedestrian. Her client emerged from his vehicle and restrained the seventeen year-old from leaving as he attempted to call the 911. The teenager’s friend  then approached,  punched Appleby’s client in the head, then boarded the school bus. As a result of restraining the juvenile for the police and subsequently trying to prevent the school bus from leaving the scene, the client was charged with two counts of Assault in the Fifth Degree (teenager and bus driver) and one count of Disorderly Conduct. Tina Appleby obtained verdicts of Not Guilty on all three counts.

 The jury returned a verdict of Not Guilty after Tina Appleby recently put the State to its burden of proof on a Possession of Child Pornography prosecution in Anoka County. Child Pornography possession, distribution amd manufacturing are very serious charges that may result in decades of prison time and sex offender registration. These consequences may occur even if the charges are reduced or eventually amended to a different charge altogether.

A St. Croix County Judge dismissed OWI charges against Eric Nelson’s client.  The Court found that the officer lacked probable cause for an arrest.  Specifically, the court found that the reasons cited by the New Richmond Police Officer for the traffic stop were explained by the fact that Nelson’s client had a flat tire.  Further, the court found that the officer unfairly subjected the client to field sobriety tests by making her perform them barefooted in 30 degree weather.

Not Guilty all counts of First and Second Degree Criminal Sexual Conduct-Dakota County

After four hours of deliberation, a Dakota County jury found Eric Nelson’s client not guilty on counts of first and second degree criminal sexual conduct.

Not Guilty all counts for Criminal Sexual Conduct-Mahnomen County

Tina Appleby successfully represented a man at jury trial on allegations of Third Degree Criminal Sexual Conduct. The jury was out less than two hours and returned not guilty verdicts on all counts

Not Guilty all counts for Murder in the Second Degree-Dakota  County

Marsh Halberg has defended a young man in Dakota County for the past four years arguing the “McNaughton Defense” of legal insanity. In a ruling described as “incredibly rare” the court ruled in our clients favor. This defense is so rarely successful that in a recent television interview about the case, a law professor stated:

“I’m sure today or tomorrow, whoever is teaching

criminal law in law school in Minnesota, will be talking

about this case.”

http://kstp.com/news/stories/S1438393.shtml?cat=1

A St. Louis County judge found that the arresting officer violated our client’s right to counsel and dismissed criminal DWI refusal charges and reinstated his driving privileges.  Attorney and Partner Eric Nelson successfully argued that the officer violated his client’s right to speak with a lawyer prior to deciding whether to submit to chemical testing.   Our client initially declined his right to speak with a lawyer, however, immediately changed his mind and told the officer that he did want to speak with a lawyer.  Because the officer refused to allow our client an opportunity to speak with an attorney after he had changed his mind, the court ruled that the officer violated the right to counsel.

In a rare move, the Minnesota Supreme Court gave hundreds of accused drunken drivers the okay to join forces to fight their case.

The decision sets up what promises to be a historic showdown in court.

It gives people arrested on suspicion of drunken driving the chance to challenge a breath test machine designed to determine blood alcohol levels. It’s called the Intoxilyzer 5000 EN.

Marsh Halberg is leading a group of defense attorneys in challenging the source code, or programming, of the machine.

Halberg said, “Before you have that dramatic effect on somebody’s livelihood, their ability to own a car, ability to put food on the table, to be convicted of a crime, to go to jail, all those other issues that are there, we have a right to challenge that evidence. You say I did something wrong. Prove it.”

The Minnesota County Attorneys Association supported the move to consolidate the cases. The group hopes to put to rest any doubt that the machine works.

Bill Lemons, who is a member of the group, said, “We believe that it is accurate, reliable, that it works.”

The Supreme Court order sends potentially thousands of cases to a judge in Scott County. A trial on whether the test is accurate could happen as soon as May.

The Minnesota Supreme Court has previously consolidated criminal cases. Twenty years ago it consolidated a large number of cases into one trial in the battle over whether DNA could be used as evidence.

Hundreds of people arrested for drunk driving are now teaming up to fight the charges. Some counts have already been dismissed and thousands of drunk driving cases across the state could be in jeopardy as defense attorneys question the accuracy of the Intoxilyzer 5000, a device used by officers across Minnesota.

“It’s an attempt to consolidate all these cases for one massive challenge about the accuracy of this machine,” said defense attorney Marsh Halberg who is leading a coalition of defense attorneys.

Until now, the company that makes the Intoxilyzer has refused to reveal the source code or secret programming that determines a person’s blood alcohol content. Now, a court order will force the company to let defense attorneys examine it.

“We want to question that witness. We want to question that box and ask the machine: how do you come to this conclusion? Do you round up, do you round down?” said Marsh.

On Friday, a judge consolidated all of the 105 cases in Hennepin County. More than 500 in the south metro have already been combined. While prosecutors support the consolidation, they vow to hold drunk drivers accountable.

“It’s a mistake for people to assume that if they somehow manage to, quote, get their test results thrown out that their case is going to be dismissed,” said Jennifer Inz, Chair of the Suburban Hennepin County Prosecutors Association.

Prosecutors point out they still have other evidence to convict some defendants like a failed field agility test or the sight of a swerving car.

“We want to keep people safe and the best way to do that is to process them using the Intoxilizer,” said Inz.

The Minnesota Supreme Court is deciding whether to consolidate all of these types of cases statewide.

 http://kstp.com/news/stories/S1307217.shtml?cat=206

The battle over obtaining the source code that runs the intoxilyzer machine used to prosecute DWI  cases in Minnesota continues to unfold. Marsh Halberg of our office has been designated one of the Lead Trial Attorneys on this matter. Lee Orwig of our office has been selected the Liaison Defense Attorney by Judge Abrams of the First District to coordinate matters. Attached is a November 2009  Pioneer Press article discussing this issue.

Pioneer Press November 5,2009

Judge agrees to set hearing on DWI test device

By Frederick Melo
fmelo@pioneerpress.com

While Minnesota’s chief justice mulls whether to appoint a single judge statewide to hear legal arguments over the reliability of the most common device that cops use to test drunken drivers, a judge in Dakota County said Wednesday that his judicial district would forge ahead.

In a three-hour hearing in a courtroom packed by dozens of defense attorneys, Dakota County District Judge Jerome Abrams said he would issue a written order to schedule hearings.

At issue is the reliability of the Intoxilyzer 5000EN, the device used by the Minnesota State Patrol and law enforcement throughout the state to test drivers suspected of driving while impaired. Defense attorneys long have questioned whether the machine accurately measures a person’s blood-alcohol level, and they sought its “source code,” the computer program that makes the machine go.

But when judges in some cases ordered that the state turn over the source code, it sparked a lengthy legal battle. The state said it couldn’t turn over the code because it didn’t have it, and the machine’s maker, Owensboro, Ky.-based CMI Inc., refused to provide it.

CMI said the code was a business secret. Without access to the code, defense attorneys argued they were unable to, in essence, cross-examine the key prosecution witness — albeit a mechanical one — and some judges agreed, throwing out the cases.

Other judges ruled against defense attorneys, though, so defense attorneys and prosecutors alike sought a uniform ruling that could apply statewide. In an eventual federal court settlement, CMI agreed to let a team of outside computer experts hired by defense attorneys examine the code.

At Wednesday’s hearing, a coalition of defense attorneys told Abrams that they’d hired a firm, Computer Forensics Services, of Minnetonka, to review the source code. Under the federal court settlement, the firm’s experts are allowed to analyze the code only at CMI’s headquarters, and they predict it could take two to three months.

Abrams said he would schedule a hearing for next spring after lawyers for the state review the analysis. The hearing could last three weeks.

“We’ll have one mega-hearing where we’ll bring these people in and fight over whether this is a good machine or it isn’t,” said

Marsh Halberg, a defense attorney representing the Minnesota Society for Criminal Justice. “Most private defense attorneys are in favor of having one hearing statewide.”

The 1st Judicial District covers Dakota, Carver, Scott, Goodhue, LeSueur, McLeod and Sibley counties. Abrams said the district has 531 pending criminal and civil cases hanging on the Intoxilyzer issue.

There are nine other judicial districts across the state, and defense attorneys have said they couldn’t guess how many cases are involved statewide.

“If you’ve got 530 in the 1st District, and Hennepin and Ramsey are bigger than that, it’s going to be thousands of cases,” Halberg said. “Common sense would dictate that you wouldn’t want to have hundreds of hearings.”

The imbroglio primarily involves criminal cases in which motorists have been charged with driving while impaired. But it also involves civil cases in which people who’ve had their driver’s license taken away for refusing the Intoxilyzer test have sued the state in an attempt to get their licenses back.

Some cases have been in legal limbo for three years as they await a definitive ruling on the source-code issue.

“I have a half-dozen (clients) in the 1st Judicial District that are affected by this,” said David Ayers, an attorney in Mendota Heights who also was at the hearing.

Halberg conceded afterward that coordinating so many cases, defendants, defense attorneys, prosecutors and judges wasn’t easy.

“We’re herding cats here,” he said.

Toward that end, Ramsey County District Judge Kathleen Gearin, chief judge of the 2nd Judicial District, asked Minnesota Supreme Court Chief Justice Eric Magnuson in September whether he could appoint a single judge statewide to hear pretrial evidentiary issues involving the Intoxilyzer.

But as the judge noted, the problem with such an arrangement is that while Minnesota statutes allow for the appointment of a single judge to handle civil cases involving the same issue, there is no similar mechanism in criminal cases. Rex Tucker, the state’s chief public defender, has argued that a single “evidentiary” court raises constitutional issues and concerns about a defendant’s due process rights.

He’s also noted it conflicts with the Rules of Criminal Procedure, which guides how criminal cases are conducted in state courts.

On Oct. 23, Supreme Court Commissioner Richard Slowes replied to Gearin on Magnuson’s behalf, telling her that the issue of appointing a single judge would have to be worked out.

“I recognize that there are likely many hundreds of cases potentially affected by such an appointment and joining all such cases in a request/motion may not be practicable,” Slowes wrote.

“I realize this is a significant logistical issue for the courts and litigants,” he told Gearin.