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Northfield man's successful challenge to his breath test results after being arrested on suspicion of drunken driving could open the floodgates in Minnesota and around the country.

Last month, Dale Lee Underdahl got to keep his driver's license after a Dakota County judge ruled that results of the breath test - in which Underdahl's blood-alcohol level was determined to be 0.23 percent, nearly three times the legal limit to drive - could not be used to revoke his driver's license. Underdahl's attorney had demanded a copy of the breath test machine's source code to help determine if it worked properly, and the manufacturer would provide it only with reams of stipulations.

Dakota County Judge Richard Spicer said the company's response was "too little, too late."

Judges and defense attorneys say the "source code defense" is becoming a common argument for defendants hoping to keep their driver's licenses. Underdahl's case also could be cited in legal appeals for cases that already have closed.

"We plead it in every single DWI case we do now," said Marsh Halberg, of Halberg Criminal Defense in Bloomington. "Any attorney worth his salt will be pleading for the source code."

Minnesota joins courts in Florida, Georgia and New Jersey that have wrestled with manufacturer CMI Inc., of Owensboro, Ky., over access to the Intoxilyzer 5000EN source code. In Florida, hundreds of DWI cases have been stuck or thrown out while awaiting the code, and judges in Sarasota and Manatee counties have fined CMI more than $100,000.

In his Sept. 25 order closing Underdahl's civil case, Spicer noted that the Intoxilyzer has been used to revoke "tens of thousands" of driver's licenses in Minnesota and prosecute an equal number of drivers. Minnesota authorities used the machine 34,000 times last year.

Many of those cases spent months on hold, awaiting a Supreme Court decision that determined the source code was, indeed, "discoverable" evidence that Underdahl could request at trial.

But the Supreme Court opinion, issued in July, stopped short of requiring that the computer code be presented or evaluated for the Intoxilyzer results to be trusted. Instead, the justices left that decision in the hands of trial court judges.

The aftermath of the Supreme Court ruling has been a hodgepodge, said Underdahl's attorney, Jeffrey Sheridan. He now challenges Intoxilyzer results and demands to see the code in all his cases, but he doesn't expect to always get the same result.

"We're back to fighting about each individual case," Sheridan said. "Now there is an order from the state's highest court saying this stuff is absolutely discoverable ... but they didn't say judges had to order it. Some judges are ordering it, and some are not."

"We're kind of in somewhat unchartered waters here. ... (It's) piecemeal," Sheridan said.

Spicer set an Aug. 17 deadline for CMI Inc. to release the code, but the company missed the deadline and later asked for extra time. Then, on Sept. 18, CMI agreed to release the code if dozens of conditions in an 11-page protective order and nondisclosure agreement were met.

"I am taking actions ... to allow controlled viewing of our source code," wrote CMI President Toby Hall, in a Sept. 25 letter to its clients.

Among the many stipulations: The source code would be shared only with expert consultants approved by the company.

Another stipulation: The agreement would be enforced by a judge in Daviess County, Ky.

Some judges have balked. In the Underdahl case, Spicer wrote that CMI's slow response showed "a serious lack of insight and concern for the orderly administration of justice in this state."

But other judges - most recently, one in Wright County, Minnesota - have signed on the dotted line.

"There are different judges that have looked at the issue and come to different decisions," said Dakota County Judge Ed Lynch, assistant chief judge of the 1st Judicial District.

Even without Intoxilyzer results, a defendant still might be found guilty of drunken driving based on other evidence, such as slurred speech, erratic driving or his or her own admissions when stopped by police. The breath test results are used to prove the driver's blood-alcohol level was in excess of 0.08 percent, a separate and more difficult charge to prove than driving under the influence.

DWI cases are prosecuted in both civil court - which deals with driver's license revocations and license plate impoundments - and criminal court, where penalties can include prison sentences. To date, defense attorneys have mostly used the "source code defense" in civil cases.

But that may be changing.

"It started on the driver's license side and is now spilling over to the criminal side," Halberg said. "There are people that have been delaying their cases until (the Underdahl decision) came down. There have been some cases that have gotten really good deals."

Underdahl may get a second chance to test his "source code defense" this week. His criminal case is set to proceed before Spicer on Wednesday.