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.

Comments

"Original Story"

[the_pooh_experience]

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):

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SANFORD -- In the past five months, Seminole County judges have thrown out hundreds of breath-alcohol tests that show drivers were legally drunk.

The reason: The state won't disclose how the test machines work -- not because it doesn't want to, but because it doesn't have the information, and the manufacturer won't give it up.

Seminole judges have tossed out more than 500 breath tests. As a consequence, prosecutors say, drunken drivers are getting off.

One is Pieter Johannes Wesselius, 32, of Altamonte Springs. He was acquitted May 17 by a Seminole County jury that did not know his breath-alcohol measured 0.20, or 21/2 times the legal limit.

Wesselius was driving a black Harley-Davidson on State Road 436 in Altamonte Springs on Sept. 18 when he was pulled over, according to a police report. He told officers he'd had six beers.

Two years earlier, he had pleaded no contest to drunken driving in Seminole, according to court records.

Wesselius, who is in jail after pleading no contest to driving a motorcycle without a license, could not be reached for comment.

What's going on in Seminole is unusual. Nowhere else are judges throwing out virtually every breath test that comes before them.

That's because all four Seminole County criminal judges now use the same standard: If a DUI defendant asks for a key piece of information about how the machine works -- its software source code -- and the state can't provide it, the breath test is rejected.

Prosecutors say they don't know how many drunken drivers have been acquitted as a result. But Gino Feliciani, the misdemeanor division chief in Seminole's State Attorney's Office, said the conviction rate has dropped to 50 percent or less.

Seminole judges are all following the lead of Seminole County Judge Donald Marblestone, who in January ruled, though the information may be a trade secret and controlled by a private contractor, defendants are entitled to it.

"Florida cannot contract away the statutory rights of its citizens," the judge wrote. Marblestone would not discuss his decision, citing pending cases.

Judges in other counties have said the opposite. The state can't turn over something it does not possess, and the manufacturer shouldn't have to turn over trade secrets, they've said.

Three weeks ago, all eight of Brevard's county judges signed an opinion saying defendants were not entitled to the machine's source code. Three weeks before that, judges in Volusia and Bay counties also sided with the state.

The demand for the machine's source code has popped up in Orange County but with less-dramatic results. Some judges have ordered the state to turn it over, but others have not, said Michael Saunders, the county court bureau chief for State Attorney Lawson Lamar.

In Orange, defense attorneys also are demanding access to another Intoxilyzer trade secret: the machine's memory system.

The machine at the center of all this is the Intoxilyzer 5000, the only breath-alcohol machine used by Florida law-enforcement agencies.

When a drunken-driving suspect is hauled into a police station or jail, he must blow into it or lose his drivers license.

The machine determines how much alcohol is in his blood by measuring the amount of alcohol he exhales. It does that by shining an infrared light through a puff of his air.

The $5,000 machine is made by CMI Inc. of Owensboro, Ky. Company officials would not comment.

The Intoxilyzer 5000 is perfectly reliable if properly maintained and operated, said Laura Barfield, manager of alcohol testing for the Florida Department of Law Enforcement, the agency that oversees all breath-alcohol testing in Florida.

But FDLE's word is not good enough for defense attorneys.

Not wnating to set a precedent.

[tres3]

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

Re:Red light cameras

[tdemark]

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

Re:easy solution

[Wordsmith]

"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.

Re:Public Right to how it works

[Ann Elk]

IMHO, the right to "know how these devices work" is just as important as the right to "face your accuser".

Imagine this scenario:

• You go out to dinner with friends, and you drink exactly one class of wine with your meal.
• On the way home, you are pulled over by a police officer for driving 39 in a 35 zone.
• You are "asked" to take a breathalyzer test.

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.

Re:Red light cameras

[enbody]

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.