A Honest Opinion...Finally
On December 10, 2007, Minnesota Judge Jack Nordby finally took a stand issuing an order that quite simply stated "[t]he company and the state cannot bargain away the people's rights and privileges." His opinion recognized our Constitutional rights and refused to compromise those rights for anything short of "National Security." At least currently, DUI defendants are not "held off shore in wartime" where the war is not a war against terrorism, is not a war against drugs, but is a war against those simply accused of impaired driving. The opinion calls for an end to the secrecy regarding the way the testing machine works, and it demands a mutuality of remedy. "Just as a person who choses to drive impliedly consents to the testing of his system for intoxicants, a seller or user of a testing instrument impliedly consents to the full disclosure and testing of all aspects of the device." He goes on to say that "[i]t bespeaks an astonishing degree of hubris for a company that designs and markets a device specifically to produce evidence for use against individuals in our courts to believe that it must not make every single piece of information concerning that product's composition and functions immediately and fully available to both the purchaser (the state) and the subject of its analysis (the driver)." His further opines that the "state cannot proffer evidence and claim immunity from the obligation to show its evidentiary foundation, especially not on behalf of a private non-party." He concludes his opinion stating that the defense must be afforded its Constitutionally guaranteed right to present its defense and confront the evidence and witnesses. The state was given 30 days to comply with the order or the evidence of the breath test was to be excluded. Will the state do the right thing? Check back later to find out the answer.