Quest for Intox5000 Source Code Fails in KY

In Lokk v. CMI, Inc., a case decided by the Kentucky Court of Appeals on February 27, 2015, the Court thwarted an attempt by defendants in several Georgia DWI cases from obtaining the source code for the Intoxilyzer 5000 breath testing machine - the same machine used by all police departments in New Hampshire.

A Georgia Court had ordered an out-of-state subpoena, directed at employees of CMI, Inc., the Kentucky-based manufacturer of the Intoxilyzer 5000, to produce the "source code" that contains the software program run by the Intoxilyzer 5000. This is the drunk driving defense equivalent of the Holy Grail - CMI insists that its software is a proprietary trade secret and has refused to provide it to litigants and courts in the past.

Without knowing what's in the software, the Intoxilyzer 5000 is nothing more than a mysterious "black box" - the person blows in it, it produces a printout with a reading, and no one can know for sure how the software programming comes up with the reading, or whether there exist bugs in the software that may produce unreliable results under certain conditions. So, defense lawyers have been trying to get their hands on the source code so that independent experts could evaluate and test the software.

Unfortunately, the Kentucky Court found the subpoena to be invalid for several reasons, one of which was that the subpoena, while containing the court clerk's official certification of authenticity, did not bear the wax or raised "seal" of the Georgia Court. So yes, a litigant's 21st century quest for late 20th century technological secrets, was thwarted by a legal principle from the 17th century or so.