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Closed Source -> Charges Dismissed?
Snorpus writes "According to the Tampa Tribune, judges in the central Florida county of Seminole are dismissing DUI charges when the defendant asks for information on how the breath test works. Apparently the manufacture of the device is unwilling to release the code to the state, and all four judges in the county have been dismissing DUI cases when the state cannot provide the requested information. Could this apply to other situations where technical means (radar guns, video surveillance, wire-tapping, etc.) are used to gather evidence? " I'd not plan on this as a legal defense, but the question it raises - of public access to information - is an important one.
This tribune story only reports on the Orlando Sentinel story found here which has some more details. The text of it is as follows (emph. mine):
It is my opinion that the legal system doesn't want to set a precedent by admitting that Breathalyzers don't actaully measure ethyl alcohol. They measure chemicals that contain methyl groups and ethanol is one of them. There are many others. See: 1 2 3 4 5
Restore America: Dr. Ron Paul for President!
The problem isn't the mistakes so much as the accountability.
If you add [say, cuz I'm not a biologist] sodium to a sample and you add 1mg too much, you don't specifically invalidate the results but you have to account for it in the final outcome...
The problem with this case is that the box that does the testing cannot be scrutinized which means there is no accountability.
And really, suppose the box was flawless, the company making them shouldn't hide the specs then. Hiding them just illuminates the potential rights violations they're unleashing on society.
Tom
Someday, I'll have a real sig.
It sounds like you are under the impression that a red-light camera just takes a single shot of the car.
When tripped, a camera actually takes two pictures; somewhat wide-angle shots that show the position of the car, the state of the intersection, and the state of the traffic signal.
The first shot will show your car behind the stop line (not in the intersection) and a red signal. The second will show your car in the intersection with the light still red. The photos are timestamped.
This way, they can prove in court that the car in the photo actually ran the red light at the time specified (the subject of the article above notwithstanding).
- Tony
"Why does the defendant have a right to know how equipment used to obtain evidence works?"
Because a defendant, who may or may not be guilty, has a right to rebut and discredit the evidence - if the state or the company to which it contracts its breathalizers won't reveal that, the defendant is robbed of that right.
How do we know the third party is really impartial, thorough or accurate? The defendant gets a shot at evaluating the evidence too.
On a very slight side-note I recently got caught by a GATSO speed camera (36 in a 30 zone) here in the UK and got the obligatory letter through the door a few weeks later. Standard penalty for speeding is 3 points on your license and a ukp60 fine. You are not even entitled to see the photo evidence unless you want to contest it in court in which case, if you are found guilty, the courts can fine you much more than the ukp60 amount and you could end up banned.
IMHO, the right to "know how these devices work" is just as important as the right to "face your accuser".
Imagine this scenario:
Background for non-US residents: In most places I have been in the US, the legal maximum blood alcohol content is around 0.08%. Most people (those with normal metabolism, etc) can easily drink one glass of wine and remain far below this limit.
When you take this test, don't you really want to know how the machine works? A false positive could have a huge impact on the rest of your life.
From experience, I can tell you that it won't work with radar guns. The "source" and technology that makes a non-laser gun work is plentiful and can even be pulled form many manufacturers websites. It is all based on the Doppler Effect, which has been proven for everything EXCEPT verification of a specific vehicle. Due to the way the waves bounce, they can only track the largest vehicle in a crowd... which is why laser has become preferred in Metro areas, but radar still works fine on the open road.
The only reason I know this is because I had to attend a traffic safety class a few months back. The law went into affect last year yet we never heard a peep about it from the newsmedia. I'm really disgusted about it myself, but also frightened. This is a major erosion of our rights yet it was somehow slipped under the radar and passed into law. Democracy my ass, and I actually do pay attention unlike a lot of people. Looks like to really know what crap your state (and probably federal too) congress is up to you need to read every single bill presented on your own, a task that's far too overwhelming for any individual who has a job/family/etc.
In most Common Law jurisdictions, the burden of proof is on the accuser to demonstrate the strength of their evidence and charges. The accused need not prove that the officer is neglegent as it is sufficient to merely introduce doubt.
There are 1.1... kinds of people.
I've seen a couple of these tickets and they work as the grandparent said - you see one shot of the car at the line, light is red, the next shot is of the car in the intersection, light still red; they also have an enlargement of the licence plate, which is a little pixilated but legible. You may notice that they always do two quick flashes; that's the two pictures. Around me, it's legal to enter the intersection to make a left turn and then complete the turn after the light changes, so being able to show that you entered the intersection while the light was red is important. Also around me over the last 10 years or so the number of red light runners was really getting out of hand, so I'm actually in favor of these things.
The key issue with red-light cameras is who controls the length of the yellow light being on. If you shorten the yellow light, you can increase violations and hence increase revenue. In many cases, the contract has the private camera company controling the yellow light timing. Revenue rather than safety becomes the deciding factor, and it is outside public control. I have read, but cannot verify, that cameras plus very short yellow lights increases rear-end crashes as people slam on brakes to avoid tickets. If red-light cameras are coming in your community, consider advocating that your community control the yellow-light timing. If the community controls the yellow-light timing, community pressure has a chance to influence the safety vs. revenue debate.
A large percent of the time, the blood test will show you a BAC that's .03% or .04% lower.
Why? Because breathalyzers are guessing. For one thing, your BAC is due to your mass, which the breathalyzer has absolutely no way to tell. And how fast you digest alcohol, which, again, it can't tell.
This is in addition to the fact they can't even do what they pretend to do, figure out how much alcohol you consumed. (Which has almost no relation to your BAC.) How much alcohol you exhale is due to how your stomach and throat works, it's not a constant.
Breathalyzers are the stupidest concept, ever. No one should ever be convicted based on them. They're useful for proving 'I smell alcohol on his breath, so I demanded he take a blood test', but they shouldn't be used for anything else.
If corporations are people, aren't stockholders guilty of slavery?
How breathalyzers work is already public, if you just want the basic information on the process:
http://science.howstuffworks.com/breathalyzer.htm
And listening devices? That's common knowledge, and there are also publicly available regulations on how they can be used, like how only certain portions of the conversation can be recorded (pre-PATRIOT Act).
That's the point - it shouldn't be restricted at all. Any tech used by the state to prosecute citizens must be open to all citizens for examination. No trade secrets.
Yes, that might require changes in how procurment contracts are made, and might lower profits for supplying companies. Tough shit. That doesn't come close to competing with the rights of due process.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
I just had a nice discussion with the local PD while I was being booked (ugh) and the topic of quotas came up. One of them said "No, there is no quota anymore, that's illegal. However, there ARE performance standards and the better you perform the better you look." So, there seems to be an "unspoken" quota.
Slashdot is proof that Sturgeon's Law applies to mankind.
In CA, that is part of the California Motor Vehicle Code ("Driving is a privilige, not a right").
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
In Texas, at least, it doesn't matter what you score on the breathalyzer. All the policeman has to do is testify that you were without your full mental faculties and you're busted. So if you get out of the car and stumble or sway a little bit, which gets caught in the camera that's *always* on, you're busted, even if you score a 0.07 BAC.
No trespassing. Violators will be shot. Survivors will be shot again.