Wednesday, June 01, 2011

DWI Appeal - Minnesota Source Code Expert Disallowed

In State of Minnesota v. Hamblin, Not Reported in N.W.2d, 2011 WL 1833089 (Minn.App.) the defense sought funds to provide for an expert to attack the source code of the Intoxilyzer 5000EN. The trial court denied the motion.

On appeal, the court first stated the applicable law:

"In Minnesota, an indigent defendant may request funding from the district court for necessary expert-witness services. Minn.Stat. § 611.21(a) (2010). On finding that the requested services are necessary, “the court shall authorize counsel to obtain the services on behalf of the defendant.” Id. The burden of making a threshold showing to the district court of the need for expert assistance is on the defendant. State v. Volker, 477 N.W.2d 909, 911 (Minn.App.1991). A defendant must give specific reasons for needing an expert. Id.; State v. Richards, 495 N.W.2d 187, 197–98 (Minn.1992) (stating defendant must present trial court with some specific evidence that expert's testimony is necessary to the defense).
Hamblin argued he needed an expert to make a threshold showing to support his request for production of the Intoxilyzer 5000EN source code. He claimed that because expert services are required for such a request, the court's refusal to grant funds for an expert denied him the right to a fair trial.

The court responded as follows:

"Hamblin accurately asserts that in order to comply with State v.. Underdahl, 767 N.W.2d 677 (Minn.2009) ( Underdahl II ), he needed to obtain expert services. The district court's denial of Hamblin's original motion for discovery of the Intoxilyzer 5000EN source code preceded Underdahl II. Since Underdahl II, we have yet to conclude that a discovery motion seeking an Intoxilyzer source code is sufficient without testimony or an affidavit from an expert witness.FN1 Each time this court has found a denial of a pretrial discovery motion seeking Intoxilyzer source codes to be an abuse of discretion, the appellant has supported the motion with testimony or an affidavit by an expert. See, e.g., State v. Granse, No. A09–2192, 2010 WL 4451243 (Minn.App. Nov. 9, 2010); Scholl, No. A08–2138; Lund, 2009 WL 1587135. Retaining an expert, however, does not guarantee a discovery motion will be granted. Underdahl II requires a “plausible showing” that the Intoxilyzer source code “would be both material and favorable” to appellant. 767 N.W.2d at 684.

In denying the appeal, the court found:

"The extent of Hamblin's argument to the district court in the record on appeal is his attorney's remarks at trial, in which he stated Hamblin requested funds for “a computer forensic expert to evaluate or challenge the results of the Intoxilyzer 5000.” Put another way, it was a “pre- Underdahl II ” argument. Hamblin did not specify why the expert would be necessary to aid Hamblin's defense at trial. The record is barren of any information necessary to determine whether the district court abused its discretion in refusing Hamblin expert-witness fees. We affirm on that issue."

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