Ky. Supreme Court Overrules Ct. of Appeals Order Allowing Access to BA Machine Computer Codes

The DUI bar has been eagerly awaiting the ruling of the Kentucky Supreme Court regarding the attempt of a defendant (Lennie House of Lexington) to obtain access to the computer code of the Intoxilyzer 5000 Breathalyzer machine.   At least two other states have granted access to these codes.  The Kentucky company which manufacturers the BA machine faces contempt of court fines in two states totaling $21,000,000, for their failure to release the codes as ordered by the courts.


The Kentucky Supreme Court ruled in a published decision released on Aug. 27th, 2009 that the subpoena for the codes was a “fishing expedition” and was not supported by sufficient facts to justify discovery.


The Kentucky Supreme Court said:


“In sum, CR 7.02(3) provides for subpoenas duces tecum to permit pretrial inspection of evidence to be admitted at trial. It is not meant to be a discovery device, however, and does not permit the subpoenaing of materials in the mere hope that they will prove evidentiary. Because House’s CMI subpoena demanding production of the Intoxilyzer’s source code was based on nothing more substantial than the conjecture that there might be material flaws in the code, the subpoena was “unreasonable” for the purposes of the rule, and the Court of Appeals erred by requiring that it be enforced .”


LawReader analyzes this ruling as to say that if there were sufficient grounds to believe the evidence was relevant and material, that a different conclusion might have been found by the court.


See the entire ruling as published on LawReader:
V. CASE NO. 2007-CA-000417-MR
LENNIE G. HOUSE                               APPELLEE
The Commonwealth seeks discretionary review of a Court of Appeals’
opinion reversing an agreed order of conviction entered following Lennie
House’s conditional guilty plea to a charge of driving under the influence (DUI) .
The Court of Appeals remanded the matter to the Fayette District Court for
additional proceedings including the enforcement of a subpoena duces tecum
pursuant to which House seeks to discover the computer code embedded in the
Intoxilyzer 5000 EN . The Intoxilyzer, manufactured by CMI, Inc ., of
Owensboro, Kentucky, is the device adopted in Kentucky for measuring the
alcohol concentration in a DUI suspect’s blood . The Court of Appeals ruled
that House was entitled to inspect the Intoxilyzer’s computer code on the off
chance that he might discover problems in the code calling the device’s
accuracy into question . Because we agree with the Commonwealth that this
case raises an important question concerning the scope of a criminal
defendant’s right to subpoena and inspect evidence prior to trial, we accepted
review, and now, having concluded that House is not entitled to the computer
code on the facts presented, we reverse .
House was arrested and charged with DUI in March 2006, when a
Lexington police officer observed him driving erratically on Tates Creek Road .
The officer reported that when he stopped House he could smell alcohol on
House’s person ; observed an open beer can in the front seat of House’s vehicle ;
had House perform field sobriety tests, all of which House failed; and
administered a preliminary breath test, which registered an alcohol
concentration of 0.160 . Thereupon, the officer arrested House and transported
him to the Fayette County Detention Center, where he administered a breath
alcohol test with the Intoxilyzer 5000 EN. That device calculated House’s blood
alcohol level to be 0.201, a level violative of KRS 189A .010(a), which, in
pertinent part, makes it unlawful for a person to operate a motor vehicle if the
person “[h]a[s] an alcohol concentration of 0.08 or more as measured by a
scientifically reliable test or tests of a sample of the person’s breath . . .
On the basis of the officer’s report and the Intoxilyzer result, House was
charged in Fayette District Court with first offense DUI. Prior to trial, House
served the Commonwealth with a discovery motion that included a demand for
the Intoxilyzer’s “source code,” the computer commands that control the
Intoxilyzer as it isolates the subject’s breath sample, tests the sample for the
presence and the amount of alcohol, and then uses the test results to calculate
the subject’s blood alcohol level . When the Commonwealth denied this request
because it did not have possession or control of the manufacturer’s computer
code, House, pursuant to RCr 7.02(3), served CMI with a subpoena duces
tecum demanding that it produce the “source code” at an August 8, 2006 pretrial
hearing. At the hearing, House introduced an expert who testified that if
given access to the code he could examine it for “bugs,” i.e., errors in the code’s
logic which could cause the machine to produce inaccurate results. The expert
admitted on cross-examination, however, that he knew of no reason to suspect
that the code was in any way flawed . At the conclusion of the expert’s
testimony, CMI and the Commonwealth both moved that the subpoena be
quashed on the grounds, among others, that by demanding the production of
CMI’s trade secrets, the subpoena was unreasonable and oppressive and that
House had failed to establish that the source code was relevant to
his case .
House argued that he was entitled to the code not only under RCr 7.02(3) but
also under the Sixth Amendment to the United States Constitution. The
district court agreed with CMI and the Commonwealth that House had failed to
establish relevancy and so granted the motions to quash.
In the wake of the district court’s ruling, House pled guilty to DUI, first
offense, but reserved his right to appeal the order quashing his CMI subpoena.
He duly appealed to the Fayette Circuit Court, which affirmed, agreeing with
the district court that House’s failure to identify some reason to suspect a
material error in the source code defeated his demand to inspect it.
House then sought discretionary review in the Court of Appeals, which,
in a divided opinion, reversed . The Court of Appeals’ majority ruled that House
was entitled to search CMI’s Intoxilyzer source code for errors because under
RCr 7.02(3) a subpoena duces tecum may be quashed only if “unreasonable or
oppressive” and in its view House’s subpoena was neither. Having considered
the Commonwealth’s challenge to the Court of Appeals’ reading of RCr 7.02(3),
we agree with the Commonwealth that House’s subpoena was indeed
unreasonable and should be quashed .
As part of the rule governing subpoenas in criminal cases, RCr 7.02(3)
provides for subpoenas duces tecum as follows :
A subpoena may also command the person to
whom it is directed to produce the books, papers,
documents or other objects designated therein . The
court on motion made promptly may quash or modify
the subpoena if compliance would be unreasonable or
oppressive . The court may direct that books, papers,
documents or objects designated in the subpoena be
produced before the court at a time prior to the trial or
prior to the time when they are to be offered in
evidence and may upon their production permit the
books, papers, documents or objects or portions
thereof to be inspected by the parties and their
Although RCr 7.02(3) has not been construed in Kentucky, our rule was taken
verbatim from Federal Rule of Criminal Procedure 17(c), which the United
States Supreme Court has explained was not intended to serve as a discovery
device for criminal cases, but was meant “to expedite the trial by providing a
time and place before trial for the inspection of subpoenaed materials .” United
States v. Nixon, 418 U.S . 683, 698-99 (1974) (citing Bowman Dairy Co . v.
United States, 341 U.S . 214 (1951)) . Accordingly, the high Court has adopted
the following four-part test for determining when a movant is entitled to the
production of subpoenaed materials prior to trial:
[T]he moving party must show: (1) that the documents
are evidentiary and relevant; (2) that they are not
otherwise procurable reasonably in advance of trial by
exercise of due diligence ; (3) that the party cannot
properly prepare for trial without such production and
inspection in advance of trial and that the failure to
obtain such inspection may tend unreasonably to
delay the trial; and (4) that the application is made in
good faith and is not intended as a general “fishing
Id. at 699-700 (footnote omitted) . A subpoena that fails this test is not
“reasonable” for the purposes of the federal rule . Notably, the federal courts
applying this test have held that the relevancy and no-fishing-expedition
prongs are not satisfied by subpoenas grounded in nothing more than
conjecture or mere hope that the subpoenaed material will include admissible
See, ..e-,Ungited States v. Abdush-Shakur, 465 F.3d 458 (10th Cir.
2006); United States v. Tokash, 282 F.3d 962 (7th Cir. 2002) ; United States v.
Hang, 75 F.3d 1275 (8th Cir. 1996) ; United States v. Arditti, 955 F.2d 331 (5th
Cir. 1992) ; United States v. Cuthbertson, 630 F.2d 139 (3rd Cir. 1980) . But
see United States v. Tucker, 249 F.R .D . 58 (S.D .N.Y 2008) (distinguishing
defense subpoenas from prosecution subpoenas and opining that the Nixon
test does not apply to the former) .
Our verbatim adoption of the federal rule makes this federal precedent
particularly apt and persuasive, and we conclude that, like the federal rule,
RCr 7.02(3) is not a discovery device, but rather a means of procuring evidence
and of permitting pre-trial inspection of evidence when inspection at trial would
disrupt the proceedings. Like most of the myriad other matters a trial court is
called upon to decide during the course of proceedings, motions for pre-trial
production under RCr 7.02(3) and motions to quash subpoenas are subject to
the trial court’s sound discretion and will be reversed on appeal only for abuse
of that discretion . Cf. Transit Authority of River City v. Montgomery, 836
S.W .2d 413, 416 (Ky. 1992) . (“[A trial judge] sits to administer the law and
guide the proceedings before him. He is vested with a large discretion in the
conduct of the trial of causes and an appellate court will not interpose to
control the exercise of such discretion by a court of original jurisdiction, unless
there has been an abuse or a most unwise exercise thereof.”) A subpoena
duces tecum under our rule may be quashed if it is “unreasonable or
oppressive,” and we agree with the federal courts that it is unreasonable if, as
in this case, the party demanding production can point to nothing more than
hope or conjecture that the subpoenaed material will provide admissible
evidence . House, as noted above, sought CMI’s Intoxilyzer code hoping that his
expert might discover flaws in it, but he presented no evidence whatsoever
suggesting that the code was flawed . His subpoena was nothing but a classic
fishing expedition, which RCr 7.02(3) does not allow. The Court of Appeals
erred by ruling otherwise .

House also contends that even if RCr 7.02(3) does not entitle him to
inspect CMI’s Intoxilyzer code, the Confrontation Clause of the Sixth
Amendment to the United States Constitution does . This issue is not properly
before us, however, because the Court of Appeals did not reach it and House
has failed to raise it in this Court by a cross-motion for discretionary review.

As we recently reiterated in Louisville and Jefferson County Metropolitan Sewer
District v. Bischoff, 248 S.W.3d 533 (Ky. 2007), CR 76 .21(1) requires such a
cross-motion by the party prevailing in the Court of Appeals if he wishes review
of issues raised in but not addressed by the Court of Appeals or issues the
Court of Appeals decided adversely to him. “If the party prevailing in the Court
of Appeals wishes further consideration of such issues along with the issues for
which discretionary review has been granted, the prevailing party must file a
cross motion for discretionary review.” Perry v. Williamson, 824 S.W.2d 869,
871 (Ky. 1992) . Because House failed to abide by this rule, we must decline to
address his constitutional claim .
In sum, CR 7.02(3) provides for subpoenas duces tecum to permit pretrial inspection of evidence to be admitted at trial. It is not meant to be a discovery device, however, and does not permit the subpoenaing of materials in the mere hope that they will prove evidentiary. Because House’s CMI subpoena demanding production of the Intoxilyzer’s source code was based on nothing more substantial than the conjecture that there might be material flaws in the code, the subpoena was “unreasonable” for the purposes of the rule, and the Court of Appeals erred by requiring that it be enforced .


Accordingly, we reverse the January 18, 2008 Opinion of the Court of Appeals and thereby reinstate the Fayette District Court’s September 1, 2006 Order quashing House’s CMI
subpoena and its October 26, 2006 Agreed Order providing for House’s conviction in the event his appeal of the subpoena issue was unsuccessful .
All sitting. All concur.
Jack Conway
Attorney General of Kentuc
Perry Thomas Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
Harold Lewis Kirtley 11
Thomas Dulaney Bullock
Bullock 8& Coffman, LLP
234 N. Limestone
Lexington, KY 40507-1027
Allen W. Holbrook
Sullivan, Mountjoy, Stainback & Miller, PSC
100 St. Ann Building
P. 0. Box 727
Owensboro, KY 42302-0727

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