HOUSE V. COM.
CRIMINAL: DUI and disclosure of Intoxilyzer 5000’s source code
2007-CA-000417
PUBLISHED: REVERSING
PANEL: ROSENBLUM PRESIDING; DIXON CONCURS; LAMBERT DISSENTS AND FILES SEP. OPINION
COUNTY: FAYETTE
DATE RENDERED: 01/18/2008
On discretionary review, CA reversed the District Court order granting of the Commonwealth of Kentucky and CMI, Inc.’s, (CMI) motion to quash a subpoena issued by House to CMI requiring CMI to produce the computer source code of its breathalyzer instrument, the Intoxilyzer 5000.
Because a flaw in the computer source code of the Intoxilyzer 5000 would be consequential to the accuracy of the reading intended to be relied upon by the Commonwealth, such evidence is relevant and admissible. Accordingly, requesting the computer code to test the verity of the readings produced by the instrument is not unreasonable. A subpoena may be quashed only upon a showing that compliance therewith would be unreasonable or oppressive. We do not believe the Commonwealth and CMI have made this showing. The burden of providing the information is minimal and the expense de minimis. Finally, a protective order should obviate any concern CMI may have with respect to protection of its source code.
Scott C. Byrd
Olgin and Byrd
