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Source code standoff in breathalyzer case

Minnesota officials haven't met a court-imposed deadline for turning over the source code to a breath-test device, which could lead to dropped DUI charges.

Minnesota authorities have missed a court-imposed deadline for turning over the source code for a breath-testing machine at the heart of a a high-profile dispute that recently made it to the state's Supreme Court.

That means now there's a greater chance that charges could be dropped against third-degree DUI defendant Dale Lee Underdahl.

The Intoxilyzer 5000EN is used in more than 20 states, according to the manufacturer. Connecticut Department of Public Safety

The next step is a court hearing scheduled for September 19, Underdahl's attorney, Jeffrey Sheridan, told CNET News.com in a phone interview on Tuesday. At the hearing, Sheridan is expected to ask the judge to throw out any evidence the state had obtained using the the Intoxilyzer 5000EN. If the judge agrees, at least one charge--that his client was driving with a blood alcohol concentration above the legal limit of .08--would likely be dismissed.

Sheridan had predicted in an interview with CNET News.com last month that the Minnesota state public safety commissioner would not supply him with the source code to the device, as ordered by the Minnesota Supreme Court, by the August 17 deadline.

Minnesota Department of Public Safety representatives declined to comment on the case on Tuesday, citing a policy not to comment on pending litigation. Sheridan said the government has made no legal filings explaining why it didn't comply with the deadline.

The state has previously argued it's not entitled to the code because of its confidential, copyrighted and proprietary nature. But the Minnesota Supreme Court in late July concluded that language in the contract between the device's manufacturer, Kentucky-based CMI, and the state indicates the source code belongs by extension to Minnesota. The justices suggested the state must do whatever it takes to enforce that contract, even if it means, for example, suing CMI.

CMI, which bills itself as a leading maker of alcohol-testing equipment, says law enforcement agencies in 40 states and in Canada use its products. Its resistance to giving up its code, however, has already led to charges being thrown out or blunted in recent cases in other states.

CMI representatives did not respond immediately to requests for comment.