ANDERSON, G. BARRY, Justice.
This appeal involves a statewide challenge to the reliability of Intoxilyzer 5000EN test results based on alleged defects in the Intoxilyzer 5000EN source code.
For many years, the reliability of Intoxilyzer 5000EN instruments went unchallenged, and existing rules and statutes provide that Intoxilyzer 5000EN test results are admissible into evidence without antecedent expert testimony.
In response to the many requests for discovery, the Commissioner filed a motion pursuant to Minn. R. Gen. Prac. 113.03, for assignment, to a single judge or a panel of judges, of all pending and future implied consent cases in which the petitioner challenged the reliability of Intoxilyzer 5000EN instruments based on allegedly defective source code. The Commissioner contended that assignment to a single judge would eliminate the risk of inconsistent rulings, provide a more efficient process and forum for adjudication of the source code challenges, and thereby preserve the resources of both the parties and the judiciary.
We determined that assignment of the issue to a single judge would further the interests of the parties and the judiciary. Consequently, on January 11, 2010, we assigned First Judicial District Court Judge Jerome B. Abrams to "administer, hear, and decide all pretrial matters concerning
The statewide assignment to the district court consists of three groups of identifiable cases. The first group consists of all pending and future implied consent matters in which the source code challenge is raised. The second group is all pending and future criminal DWI cases in which the source code issue is raised and "both the prosecuting authority and the defendant provide written notice to [the district court] of their consent to th[e] assignment." The third group includes all of the criminal DWI cases listed in an addendum to the January 11, 2010, assignment order so long as the defendant was not represented by a public defender. Since this assignment order was issued, no party has objected to it or to the implementation orders promulgated by the district court.
After several months of discovery, appellants
In response to appellants' pretrial motions, the district court held an evidentiary hearing beginning on December 8, 2010, and concluding on December 23, 2010. The district court stated that the proceedings were to provide a resolution of the "admissibility or inadmissibility of results reported by Minnesota's Intoxilyzer 5000EN fleet as a result of the Source Code of the instrument," and "whether challenges related to the reliability of Intoxilyzer 5000EN results based on the Source Code of the instrument should be permitted." Throughout the hearing, the district court reminded the parties that it was conducting an evidentiary hearing pursuant to Minn. R. Evid. 104, which provides that "[p]reliminary questions concerning... the admissibility of evidence shall be determined by the court...."
At the evidentiary hearing, a report prepared by Computer Forensic Services, Inc. ("CFS"), was admitted into evidence. CFS was the company retained by appellants to analyze the source code of the Intoxilyzer 5000EN. After conducting a thorough analysis of the source code, CFS concluded that "the Intoxilyzer 5000EN instruments in use in Minnesota provide[ ] valid BrAC
Appellants' first expert witness was Timothy E. Black, who is a systems consultant with decades of experience with embedded computer systems. He designed and conducted several experiments to test how the Intoxilyzer 5000EN's source code affected breath alcohol test results in marginal and extreme breath-testing situations. Black traveled to Kentucky to view the source code on August 9, 2009. He spent 6.5 hours viewing the source code, including his time reviewing his notes and "planning what else to study." Black focused his examination and testing on what he identified as problem areas, including self-testing functions, RFI, and sample volume detection. He prepared two reports on his findings, and both were admitted as exhibits at the evidentiary hearing.
Black's testing led him to conclude that the source code for the Intoxilyzer 5000EN was deficient in all three areas. For example, Black found that the self-testing functions in the source code are very limited, even though the source code is supposed to determine whether the machine is functioning properly. Black testified that the source code does not detect when the peripheral electrical or heater connections are unplugged and does not measure the heater temperature. In addition, Black testified that although the phenomenon of "power drift" (a change in voltage) could create unstable readings, the source code does not provide any method for either detecting or reporting power drift. Black concluded that the omissions in the self-test functioning of the source code adversely affect the reliability of the machine's breath alcohol test results.
Black also testified that the source code's failure to detect RFI from cell phones renders Intoxilyzer 5000EN test results unreliable. He cited his tests that were based upon generating signals across a bandwidth from 0 to 1000MHz. He claimed that the RFI detection built into the Intoxilyzer 5000EN only reacted to business-band frequencies in the 148-156 MHz range. Noting that cell phones operate in the 900 MHz range, Black concluded that cell phone RFI would not cause tests to discontinue because the alleged radio interference is not detectable by the source code, and as a consequence, the interference compromises test results.
Appellants' second expert witness was Dr. Karl Schubert. CFS hired Schubert as an independent contractor, and he was part of the expert team that reviewed and wrote the CFS source code report. Schubert testified that he reviewed the source code line-by-line as part of a comprehensive examination. At the time of the hearing, however, Schubert acknowledged that he was no longer testifying on behalf of CFS but was now retained directly by appellants to testify as an expert.
Schubert had two criticisms of the source code: (1) the range of acceptability set by the source code is too narrow; and (2) without reporting a margin of error,
Schubert also testified about the precision of test results in relation to the Intoxilyzer 5000EN. Schubert testified that the source code does not comply with the requirement in the State's request for proposal (RFP) and CMI's response to the RFP that systematic error could not be greater than +/-3% or +/-0.003 alcohol concentration, whichever is larger. Schubert found that the source code is deficient because it does not provide measured breath alcohol concentration results with the precision the State required in its request for proposal. Instead, he concluded the machine was accurate within a 10% margin of error for a 0.08 alcohol concentration. In addition, he testified about a statistical analysis study conducted by Rod Gullberg that showed a 9-3/8% margin of error for a 0.08 alcohol concentration ("Gullberg Study"). See Rod G. Gullberg, Breath Alcohol Measurement Variability Associated with Different Instrumentation and Protocols, 131 Forensic Sci. Int'l 30 (2003). Schubert concluded that without reporting the margin of error, the Intoxilyzer 5000EN does not accurately, validly, and reliably report alcohol concentrations of 0.08 or 0.20 to a reasonable degree of engineering certainty.
Appellants' third expert witness was Mary Catherine McMurray. She is a self-employed forensic scientist who consults on breath alcohol concentration test cases. Before becoming an independent consultant, McMurray worked as a chemist for the Wisconsin State Patrol in the breath alcohol program, where she was responsible for checking and certifying the Wisconsin's Intoxilyzer 5000ENs and training police officers, lawyers, and judges in machine operations.
McMurray testified that she had conducted her own testing during training seminars regarding the way in which radio frequency interference from cell phones affected Intoxilyzer test results. According to McMurray's testing, RFI from cell
Appellants' fourth expert was Karin Kierzek. She is a forensic scientist with the Bureau of Criminal Apprehension ("BCA"). Kierzek explained in more detail that there are five criteria that must be met for the Intoxilyzer to accept a breath sample. The criteria are: (1) start by blowing at 0.17 liters of air per second; (2) maintain a breath rate of at least 0.15 liters of air per second; (3) maintain that rate for at least two seconds; (4) blow a minimum volume of air of at least 1.1 liters; and (5) attain a fairly level alcohol slope that is rising at a rate of less than seven percent. Kierzek testified that if a person blows "very hard" into the instrument, the person would have to blow a "great deal longer" for the instrument to accept the sample.
Appellants' fifth expert witness was Patrick Pulju. His job is to maintain the Intoxilyzer 5000ENs and train officers to use the instrument. Pulju testified that an error in the current 240 software running the Intoxilyzer 5000EN caused some adequate breath samples to be falsely rejected as deficient. Specifically, Pulju testified that when a person blows "very hard," the required volume is increased by two-thirds, meaning the person would need a minimum sample size of 1.8 liters for acceptance.
The State's first expert witness was Dr. Stephen Nuspl. Nuspl has an advanced degree in electrical engineering and substantial computer programming experience. Nuspl traveled to Kentucky to review the source code. He produced a report in which he detailed his own independent review as well as his review of each of the other expert reports.
Nuspl testified that omissions Black found in the source code with respect to self-testing were inconsequential because the machine is tended by an operator, who is supposed to observe if the machine is not functioning properly. He also testified that omissions in the source code for detecting radio frequency from cell phones were not a concern "if one uses a reasonable set of guidelines — like, for example, making sure that cell phones are not in the same room or at least a certain distance away."
The State's second expert witness was Matthew Willis. He was the vice president of security services at CFS.
The State's third expert witness was David Edin, who is a forensic scientist with the BCA. Edin's job responsibilities include teaching certification and recertification classes to Intoxilyzer 5000EN operators, instrument repair, and software evaluation. Edin testified about the issues raised in a series of emails beginning in 2006 between BCA breath-testing employees and CMI. Edin testified that the BCA was concerned about whether CMI had changed the sample acceptance criteria in the 240 software and, if so, whether it was
Edin and others at the BCA conducted several tests, and decided that a sample might be erroneously labeled deficient only if a person was blowing "exorbitantly hard." Edin testified that the software change only affected sample acceptance, not any actual alcohol concentration measurement. He testified that when a test subject provides a deficient sample, he or she may be charged with a refusal at the discretion of the operator; the Intoxilyzer does not measure intent and it is up to the operator to discern why the deficient sample occurred. The operator could give further instruction on how to provide a sample and let the subject take another breath test or offer an alternate test. But if the operator believed that no amount of instruction would produce an accepted sample, based on the subject's conduct, the officer could charge the subject with refusal.
Edin also testified about his understanding of the Gullberg study. According to Edin, the Gullberg study concluded that more variables exist with biological variants than with control variants. Thus, when dealing with results generated by human subjects in the field, the range of values will be wider than in a laboratory setting. Edin therefore concluded that the Intoxilyzer 5000EN is acceptable in its level of precision.
After reviewing all the evidence, the district court found that the CFS report cast "a large shadow over the hearing" because appellants' primary expert determined that Intoxilyzer 5000EN instrument produced valid breath alcohol measurements and functioned as designed. The district court also found the State's experts to be qualified and knowledgeable. More specifically, the district court stated, "Dr. Nuspl's qualifications to address matters related to the Source Code of the Intoxilyzer 5000EN were well established." The district court further stated, "[f]rom [Dr. Nuspl's] testimony it was apparent that he conducted a very thorough review of the Source Code." The district court also emphasized that Nuspl made "repeated material references to the actual Code when making observations about the findings of others."
The district court criticized the methodology and documentation of several of appellants' experts. More specifically, the district court described Black's source code review as follows:
With regard to Schubert's testimony, the district court concluded that Schubert's reliance on the Gullberg article was misplaced:
The district court also expressed significant concerns regarding McMurray's credibility and qualifications as an expert witness:
The district court also specifically found that McMurray's challenges based on alleged RFI interference did not affect the reliability of Intoxilyzer 5000EN test results:
The district court also concluded that McMurray's challenges based on alleged errors in the calculation of volume did not affect the reliability of Intoxilyzer 5000EN results:
Based on the evidence presented at the evidentiary hearing, the district court determined that Intoxilyzer 5000EN instruments that report a numerical value for measured breath alcohol are reliable. The district court explained that the alleged source code defects relating to self-testing, volume measurements, margin of error, and RFI did not affect the reliability of Intoxilyzer 5000EN instruments that reported a numerical value for measured breath alcohol. More specifically, the district court stated:
The district court also concluded that
Regarding air volume measurements, the district court stated:
Finally, with respect to margin of error, the district court stated:
Consequently, the district court denied appellants' motion to exclude test results produced by Intoxilyzer 5000EN instruments that reported a numerical value for measured breath alcohol.
The district court also denied appellants' alternative motion for an order allowing them to present to the trier of fact in their individual cases expert testimony that the alleged defects in the Intoxilyzer 5000EN source code affected the precision of the instrument's test results. The district court explained that "[t]o the extent challenges to test results are premised upon problems with the Source Code, such challenges are overruled, and evidence of the same should not be allowed."
The district court determined, however, that the source code of the instrument did impact the reliability of Intoxilyzer 5000EN instruments that reported a "deficient sample" while running the 240 software because the "deficient sample ... could be due to either a software failsafe or the conduct of the test subject." Consequently, the district court ruled that in those cases, Intoxilyzer 5000EN deficient sample test results were inadmissible unless there was other evidence or observations that supported the sample being deficient.
Appellants filed a petition for discretionary review with the court of appeals, which granted the petition. We later granted
On appeal, appellants assert three claims: (1) the district court's order must be reversed because the district court failed to articulate and apply the appropriate standard to determine the admissibility of Intoxilyzer 5000EN test results; (2) the district court violated their right to due process when it ruled that appellants cannot present evidence to the fact finders in each case that the Intoxilyzer 5000EN test results may be affected by source code errors; and (3) the district court erred in ruling that evidence of an unreliable and inadmissible "deficient sample" test report is admissible if other evidence supports the deficient sample report. For the reasons discussed below, we conclude that the district court afforded appellants ample opportunity to present evidence challenging the reliability of Intoxilyzer 5000EN test results and that the district court's evidentiary rulings are supported by the record and existing law.
We first address appellants' claim that the district court committed reversible error by not articulating any particular standard when it ruled Intoxilyzer 5000EN instruments that report a numerical value for measured breath alcohol are reliable and unaffected by actual or alleged problems with the instrument's source code.
Rulings on evidentiary matters rest within the sound discretion of the district court and will not be reversed on appeal absent a clear abuse of discretion. State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997). The clearly erroneous standard controls our review of a district court's factual findings. State v. Prtine, 784 N.W.2d 303, 312 (Minn.2010). We will not reverse an evidentiary ruling based on a district court's failure to make a detailed record of its analysis if our review of the record supports the evidentiary ruling. See, e.g., State v. Swanson, 707 N.W.2d 645, 655 (Minn.2006) (affirming the admission of impeachment evidence when our review of the record revealed that only one Jones factor weighed against the admission of Swanson's prior assault conviction).
The district court did not expressly articulate the standard it applied when it made its evidentiary ruling that Intoxilyzer 5000EN instruments that report a numerical value for measured breath alcohol are reliable and unaffected by actual or alleged problems with the instrument's source code. We therefore consider whether, in light of the relevant law, the record supports the district court's evidentiary ruling.
Pursuant to Minn. R. Evid. 104(a), a district court is allowed to determine "[p]reliminary questions concerning ... the admissibility of evidence." To the extent that the admissibility of evidence is conditioned on a threshold question of fact, it is the function of the district court to determine whether or not the condition has been fulfilled. Minn. R. Evid. 104(a) comm. cmt. — 1977.
Both parties contend that a preliminary question regarding the admissibility of Intoxilyzer 5000EN test results that report a numerical value for measured breath alcohol is whether the Intoxilyzer 5000EN instrument was reliable and unaffected by actual or alleged problems with the instrument's source code.
The United States Supreme Court and at least one legal commentator have concluded that a district court should use a preponderance of the evidence standard when determining whether or not a preliminary condition of admissibility has been fulfilled. Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); 11 Peter N. Thompson, Minnesota Practice — Evidence § 104.2 (3d ed.2001); see also 11A Peter N. Thompson & David F. Herr, Minnesota Practice — Courtroom Handbook of Minnesota Evidence, at 20 (2012 ed.) (stating that "[t]he judge should use a preponderance of the evidence standard" under Rule 104(a)). The preponderance of the evidence standard requires that to establish a
483 U.S. at 175, 107 S.Ct. 2775. We are persuaded by the Court's reasoning in Bourjaily in part because the language in Minn. R. Evid. 104 is identical to Fed. R.Evid. 104. Consequently, we hold that the preponderance of the evidence standard applies to preliminary questions concerning the admissibility of evidence.
As mentioned above, the district court did not explicitly articulate the standard of proof it was applying. Our review of the record, however, indicates that the district court plainly applied the preponderance of the evidence standard when it made its pretrial determination that Intoxilyzer 5000EN instruments that report a numerical value for measured breath alcohol are reliable and unaffected by the source code defects alleged at the evidentiary hearing. The district court's detailed findings regarding the testimony of each expert demonstrate that the district court did not find the parties' evidence to be "equally balanced." Instead, the district court expressly found the State's experts to be more credible, explaining for example that "[o]n the subject of RFI, with demonstrated knowledge of electromagnetic theory and science, Nuspl undid much of the criticisms of Mr. Black." The district court also found that the CFS report had effectively eclipsed appellants' other evidence because CFS, which was appellants' principal expert, concluded that the "Intoxilyzer 5000EN instruments in use in Minnesota provide[ ] valid BrAC measurements and function[ ] as designed." The district court specifically declared that the CFS report cast "a large shadow over the hearing." Based on this record, we conclude that a preponderance of the evidence supports the district court's pretrial determination that Intoxilyzer 5000EN instruments that report a numerical value for measured breath alcohol are reliable and unaffected by the source code errors alleged at the evidentiary hearing.
We next address appellants' challenge to the district court's ruling that "[t]o the extent challenges to test results are premised upon problems with the Source Code, such challenges are overruled, and evidence of the same should not be allowed." Appellants claim the ruling violates their due process and fair trial rights because "the only issue before [the district court] was whether Intoxilyzer results
"Under the due process clauses of the Fourteenth Amendment of the United States Constitution and Article I, Section 7 of the Minnesota Constitution, every criminal defendant has the right to be treated with fundamental fairness and afforded a meaningful opportunity to present a complete defense."
The question of whether a testing instrument is reliable is separate and distinct from the question of how much weight a trier of fact should give to the test results. See Minn. R. Evid. 104(e) (providing that Rule 104 does not limit the right of a party to introduce before a jury evidence relating to weight or credibility); State v. McCabe, 251 Minn. 212, 216, 87 N.W.2d 360, 363 (1957) (explaining that "[i]t is generally recognized that the weight and credibility of expert testimony is for the jury's determination"). Nevertheless, a district court may prevent a defendant from presenting expert testimony to the trier of fact without violating the defendant's constitutional rights when, for example, the court concludes that the evidence is not relevant. McCabe, 251 Minn. at 216-17, 87 N.W.2d at 363; see also Minn. R. Evid. 401 ("`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
In our January 11, 2010, order, we assigned the district court to "administer, hear, and decide all pretrial matters concerning challenges to the reliability of Intoxilyzer 5000EN results based on the source code of the instrument" in (1) all pending and future civil implied cases in which a party challenges the reliability of Intoxilyzer 5000EN results based on the source code of the instrument; and (2) all pending and future criminal DWI cases in which (a) a party challenges the reliability of Intoxilyzer 5000EN results based on the
During the consolidated proceedings, appellants had ample opportunity to challenge the reliability of Intoxilyzer 5000EN test results. The district court heard the testimony of each of the parties' witnesses, admitted into evidence expert reports from both parties, and received and considered hundreds of pages of documents. After considering all of the evidence, the district court concluded that "[t]he results of breath alcohol testing conducted on the Intoxilyzer 5000EN which express a numerical value for measured breath alcohol are reliable and unaffected by actual or alleged problems with the Source Code of the instrument." The district court then considered the second issue raised in appellants' pretrial motions: whether appellants could present the trier of fact in each individual case with expert testimony that the alleged defects in the source code affected the precision of the test results. Having concluded that the validity of the test results in question were unaffected by the alleged source code defects, the district court ruled that appellants would not be allowed to present evidence to the trier of fact in each individual case relating to source code challenges to Intoxilyzer 5000EN instruments that reported a numerical value for measured breath alcohol.
Despite appellants' claims to the contrary, the record plainly demonstrates: (1) that the question of whether evidence relating to source code challenges to Intoxilyzer 5000EN could be admitted at appellants' individual trials was squarely before the district court, and (2) that the validity of test results produced by Intoxilyzer 5000EN instruments that report a numerical value for measured breath alcohol were unaffected by the source code defects alleged at the evidentiary hearing, a fact conceded in the report from appellant's primary expert, CFS. Because the district court extended ample process to appellants and the source code defects alleged at the evidentiary hearing are not relevant to the issue of whether the test results in question are valid, we conclude that the district court did not violate appellants' right to due process and a fair trial when it ruled that "[t]o the extent challenges to test results are premised upon problems with the Source Code, such challenges are overruled, and evidence of the same should not be allowed."
We emphasize that the district court limited its decision to "challenges of breath alcohol test results based upon the Source Code of the Intoxilyzer 5000EN" and did not "intend[ ] to impair other defenses or challenges as may be permitted." In other
Finally, we address appellants' claim that the district court erred in ruling that "[e]vidence in such cases of a `Deficient Sample' test report should not be allowed unless other evidence exists which provides reasons and/or observations of testing which supports the sample being deficient." Appellants argue that the district court's decision to allow evidence of a deficient sample was an abuse of discretion because evidence that is inadmissible because it is without foundational reliability does not become reliable and therefore admissible simply because other evidence also supports the same result.
When a breath test is offered as the evidentiary test, "the test must consist of analyses in the following sequence: one adequate breath-sample analysis, one control analysis, and a second, adequate breath-sample analysis." Minn.Stat. § 169A.51, subd. 5(a) (2010). "[A] sample is adequate if the instrument analyzes the sample and does not indicate the sample is deficient." Minn.Stat. § 169A.51, subd. 5(b) (2010). In order for a sample to be adequate, the person must (1) start blowing at 0.17 liters per second, (2) maintain a breath rate of at least 0.15 liters per second, (3) maintain that rate for at least two seconds, (4) blow a minimum volume of air of at least 1.1 liters, and (5) attain a fairly level slope that is rising at a rate of less than seven percent. Under Minn.Stat. § 169A.51, subd. 5(c) (2010), "failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal."
As discussed above, Minn. R. Evid. 104(b)
The district court determined that version 240 software "does reject under some circumstances samples which are valid." But the court also found that the Intoxilyzer 5000EN instrument "does not detect intent" and that "a deficient sample... could be due to either a software failsafe or the conduct of the test subject." In accordance with Minn. R. Evid. 104, the district court made a pretrial determination that an Intoxilyzer 5000EN instrument that reports a "deficient sample" while running the 240 software was unreliable and inadmissible unless there was additional evidence or observations that demonstrated that the reported "deficient sample" was not the result of the software failsafe. In other words, when the State establishes that the "deficient sample" is not due to the 240 software failsafe by presenting additional evidence, such as an officer's observation that the driver did not engage in exorbitantly hard blowing or other conduct that would cause the 240 software to report an adequate breath sample as a deficient sample, the reliability of an Intoxilyzer 5000EN instrument that reports a "deficient sample" is not called into question. Because the district court's ruling is well reasoned and consistent with existing law, we conclude that the district court did not abuse its discretion when, in accordance with Minn. R. Evid. 104, it made a pretrial determination that Intoxilyzer 5000EN instruments that report a deficient breath sample while running the 240 software are unreliable unless there is other evidence or observations that demonstrate the deficient sample was not the result of a source code error.
The stay imposed by our Order of July 26, 2011, is dissolved effective upon either (1) the expiration of the time for filing a petition for rehearing, see Minn. R. Civ. App. Pro. 140.01, or (2) if a petition for rehearing is timely filed, a ruling by this court on the petition for rehearing, unless otherwise ordered.
Affirmed.
PAGE, Justice (dissenting).
I respectfully dissent. The court holds that the district court did not abuse its
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Minn. R. Evid. 401. Generally, "relevant evidence is admissible." Minn. R. Evid. 402. The court concludes that the district court did not violate appellants' due process and fair trial rights when it excluded evidence at trial related to alleged problems with the source code because "the source code defects alleged at the evidentiary hearing are not relevant." Supra at 541. I disagree. It is undisputed that radio frequency from cell phones can affect the Intoxilyzer 5000EN's results.
I read the court's opinion as permitting a defendant to mount a pretrial challenge to the procedures the police officer used while administering the test — for example, if the police officer failed to ensure a cell phone was sufficiently far from the testing device.
Second, I disagree with the court's holding regarding the admissibility of a deficient breath sample. The court frames this as an evidentiary determination governed by Minn. R. Evid. 104(b).
The practical result of the court's holdings is that defendants will be unable to challenge Intoxilyzer 5000EN results. Despite evidence that the test has a margin of error, that radio frequencies from cell phones can disturb the accuracy of the test, and that the test may erroneously produce a deficient sample,
ANDERSON, PAUL H. (dissenting).
I join in the dissent of Justice Page.
MEYER, J. (dissenting).
I join in the dissent of Justice Page.
Minn. R. Evid. 104(b), comm. cmt. — 1977.
