DWI calls are some of the most complicated, time-sucking reports cops will handle. There is more paperwork for arresting someone on a misdemeanor DWI then arresting someone for felony strangulation or even murder. Defense lawyers know they can’t beat their client’s charges based on the merits of the case. They have resorted to technical, shenanigan moves. Below is a rare ruling from a judge that grasped the reality of this all and did not allow the world of rulings, lawyers and insanity to affect on him. His summary is punctuated with moments of killer humor if the reader is willing to wade through the legal history.
For the reader fortunate enough to be unfamiliar with the issue, a Reader’s Digest summary of the underlying situation is in order.
In Minnesota it is illegal to drive a motor vehicle with a blood alcohol concentration (BAC) of over .08. A violation has both civil and criminal consequences.
With the appropriate legal predicates (which are not an issue here) the police can test the BAC by blood, urine or the driver’s breath. In the overwhelming percentage of cases the breath test is used (including the case at bar). This is accomplished by taking the driver to a local police station and having the driver give a breath sample in a machine known as an Intoxilyzer. This machine is operated by a computer program known as a “source code.” The machine’s accuracy can be authoritatively tested by use of a known alcohol sample. The use of the machine is authorized by state law and State designates. The model to be used and contracts for or otherwise specifies the machine’s operating characteristics.
In recent months and years, in both implied consent and criminal matters, drivers have moved pretrial for disclosure by the State of the above-mentioned source code.
The State has responded in two ways. Firstly, that the source code is irrelevant because the accuracy of the machine can be proven (or disproven if in fact the source code is out of kilter) by a test of the machine by a known alcohol sample.
Secondly, that the State does not possess the source code and cannot obtain it. The manufacturer claims it is proprietary information and will not disclose it to the State (or anyone else).
These issues by fits and starts lurched their way to our Supreme Court and this motion comes about as the result of that Court’s most recent pronouncement cited above.
Firstly, the Court decided that if a party files an elaborate and expensive enough supporting affidavit (which all litigants now have submitted), need for the source code has been shown. One supposes this will be quibbled with in some law review articles but as a matter of fact, it doesn’t matter. This is because the States position is that if it had the source code it would disclose if faster than a speeding bullet. The State does not care if the drivers have the source code. In fact, it is the State and, of course, those people killed by drunk drivers that are the victims in this judicial squeeze play.
In fact, the State has claimed it is entitled to the source code under its agreements with the manufacturer in a case commenced by it in U.S. District Court. That leisurely proceeding has become more exciting by the embellishment of a judicially permitted intervenor who is not a party to the contract or agreement between the State and the manufacturer. There could of course be a surprise settlement (rumor has it that the intervenor torpedoed a recent attempt at one), but absent that we can be assured that with appeals, remands, new trials, and further appeals the case will be completed within lives in being plus twenty-one years.
Our Supreme Court has in effect held that the source code is in the possession, custody or control of the State. This author realizes that sounds odd, but the reader should keep in mind that when our Supreme Court speaks ex cathedra on matters of law from its courtroom in St. Paul it is, as far as the lower courts are concerned, miraculously preserved from error. It is a good thing, too, becaue the miracle of findings that the State has control of the source code makes accepting any miracle in the Bible a slam dunk.
It appears the Supreme Court reached its conclusion because the paperwork seemd to the Court (without input from the manufacturer who claims otherwise) that the State is entitled to the source code. Well, the State must think so, too, or it would not sue for the source code in Federal Court. But a freshman logic course would teach us that being entitled to something is different than having it. Just ask Hillary Clinton.
The Court’s decision puts the trial court in the position of Galileo, who in the 1600′s was deemed by the Holy Inquisition a heretic because he argued the Earth goes around the Sun, when every God-fearing person could look up in the sky and watch the Sun go around the Earth once a day.
The trial court now must sacrifice truth as a burnt offering on the altar of stare decisis and go down the rabbit hole with Alice and from the PRecints of Wonderland tell the world that the State has the source code when it really doesn’t. It of course may in the future, but it doesn’t now, and it is now that drunk drivers will keep their license and kill people. These decedents are unable to intervene here of in Federal Court.
Galileo was sentenced to house arrest for life (this author could see that coming) but to prevent the unpleasantness of the medieval equivalent of waterboarding, Galileo publicly renounced his heresy and stated that the Sun revolved around the Earth. But as he left the room he whispered to his guard, “The Earth still revolves around the Sun.”
In the accompanying order, this author renounces his heresy and follows the Supreme Court’s findings to the letter. But to the people of Minnesota and every family that has had a loved one killed by a drunk driver, he whispers, “The State does not now have possession, custody or control of the source code.”

A Firm Covenant
“Because of all this we make a firm covenant in writing; on the sealed document are the names of our princes, our Levites, and our priests.” Nehemiah 9:38
I am too young to know if this has changed in our culture, but people today are scared of commitment. This is clearly reflected in the average age of when a man and woman first get married. Fifty years ago it was in the early twenties and today it is pushing thirty. Men would rather sit in front of video games than raise children. I have also seen it within Christendom too; those who are jittery about signing a commitment and becoming members of a church. There are even Christians who don’t see the point in regularly attending a church.
There is a weight of New Testament scripture that would sink any rickety argument as to why a Christian should not actively participate in a church body. Now, try and convince the same person that they should sign a document affirming certain beliefs, and you may as well try and talk him or her into having a root canal without Novocain.
Such was not the case with Israel in Nehemiah 9. The “because” in verse 38 refers to the previous 37 verses in which they recount the faithfulness of God despite their repeated sins. God was quick to forgive them and showed lavish grace and mercy. With renewed vigor to follow after God the leaders were willing to sign their names and make a covenant. It was a symbol of their pledge to remain faithful to God and follow after him.
A Christian should be committed to the local church, striving for its health and advancement. If Christ said that he would build his church, should we not value it just as highly as he did?
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