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

radar guns

[_Shorty-dammit]

this is the first thing that popped into my head as I was reading through the post, and then it was mentioned near the end, hehe. Wonder if this might be successful with them speeding tickets, hehe.

Re:radar guns

[Zorilla]

It's easy enough to let happen. You ever driven on highways in Oklahoma? Speed limit: 75 MPH, no wait, 45 MPH, now it's 65...not! God, the I-44 into Tulsa is obnoxious; there's three or four signs within 1 mile of each other just like that.

Re:radar guns

[dknj]

i would also like to state driving after drinking is stupid, and its a shame to see DUI offenders getting off on this. :(

-dk

Re:radar guns

[Kombat]

yeah, going 90km/h because my cruise control was set for the 90km/h zone that I just left, because it simply slipped my mind as I passed the 80km/h sign, which I could still see from the spot the cop pulled me over

I find it very difficult to believe that a cop would pull you over for doing 10 km/h over the limit. You're quoting km/h, so I'll assume you're in Canada or Europe, not the US. Here in Ontario, a cop won't even blink unless you go by him at at least 20 km/h over the limit. They always knock the ticket down to the next lower level anyway, to discourage you from fighting it (if you fight it in court, they go back to charging you with the actual speed, rather than the reduced one, and if you lose, you get the corresponding increased fine and demerit points). If you were actually only going 10 km/h over the limit, then he'd likely only write you up for going 5 km/h over the limit, which is about a $15 fine and no demerit points. It's not worth the time and paperwork to do it. It'd cost them more in paying the cops time and the courts paperwork than the fine even costs.

Can you post a link to a scan of the ticket that says you were going 90 km/h in an 80 zone?

Re:radar guns

[Kombat]

I'm just not sure if it would be legal here, as a defense of "the cop who pulled me over wrote 90 km/h on the ticket. Why are you charging me with 100 km/h?". Perhaps make the penalty to discourage challenging be part of the law instead of a workaround?

Both speeds are on the ticket. The officer documents what he actually saw, then has the discretion of charging you with whatever he wants. Here's a scan of one of my speeding tickets, with the two different speeds highlighted. He radared me actually going 107 km/h in an 80 zone (The code "R 107" highlighted in section "B"), but he only charged me for going 95 km/h (Section "A"). If I'd chosen to fight it, they'd have charged me with the original speed instead, and I'd probably have lost anyway. As it was, it was a relatively small fine, and no demerit points on my license.

Voting machines?

[Anonymous Brave Guy]

It seems to me that one place this could really matter would be if a precedent were set that affected all the electronic voting machines cropping up in recent elections (with not such a great reputation so far, IME).

Pulic Right to how it works

[redstar427]

Does the Pulic have the right to how these devices work, or just the procedures on how they are used?

Re:Pulic Right to how it works

[polysylabic psudonym]

The public has the right to know if the device works, and how well. Without knowing how it works how can a citizen know if the charges against them are valid?

Re:Pulic Right to how it works

[Qzukk]

That depends, did the company who makes them program them to ring the bell every four times and collect a percentage of the profits?

Reminds me of the questions raised by people in several cities when red-light-running cameras were installed on a profit-sharing plan. The photographs provided no proof that the light was even red at the time, other than the fact that it was taken, and computers never do the wrong thing, right?

Re:Pulic Right to how it works

[jedidiah]

...which in any University Software Engineering course will be shunned in favor of formal verification. "black box" testing is the lazy approach.

Re:Pulic Right to how it works

[StillNeedMoreCoffee]

I'm sorry, you do have a right to know as the device becomes to some extent your accuser and you have a right to confront and question your accuser. Another replier makes the same point.

The issue here is that the device might be fine under the standard calibration procedures which might be done in a temperature/humidity controlled environment, but the test you are given might be done in 120 heat on a very humid day and might and might have just been taken out of the policemans air conditioned car. It might also be mid day and in bright outdoor sunlight. The device might be using infrared light or some sensor that is temperature or heat sensitive or goes haywire when the temperature changes. As anyone that has tracked down failing parts in an electronic circuit with freeze spray can identify with even other parts, capacitors, resistors, IC's can be marginal and/or temperature sensitive.

You have a right to confront your accusers and to verify that not only was the device calibrated but that it works correctly and calibratedly under the conditions that the test was given. Don't you think.

Then there are the voting machines that the voting machine company won't release the source on and that leaves no paper trail. Aren't you getting just a little nervous.

I don't advocating drunk driving at all. I advocate complete information about an acusation. Look at the maticulous rules of evidence and chain of documentation needed to handle evidence to insure that the objects kept are the ones taken from the crime, and that no tampering was done. I think the same principle should apply to any device that give evidence.

Re:Pulic Right to how it works

[Kainaw]

If attorneys can successfully bring up the issue of false negatives then THAT is the real problem

I doubt it is available online, but an actual case that backs up your statement took place in Beaufort County, SC in 1992. The county brings people in for a a breathalyzer. They don't do it in the field. So, one and only one machine is used. One night (and who knows how much longer than that) everyone blew a 0.21 - over the legal limit. After a while, the officers realized the ongoing pattern and tried it on themselves. They all blew a 0.21.

I remember this case, not because of the broken machine, but because of the problem of maintaining order in a prison. They knew they were going to drop the DUI charges on everyone who used the machine that day. It didn't take much time to get a list of names and realize that they had been patrolling Hilton Head (a rich, mostly white, tourist area) heavily. So, out of the couple hundred people in jail, they were going to releast pretty much all of the white people. Knowing this would cause a huge problem, they decided to wait until morning when everyone went into processing to see the judge. They just explained the situation to the people being let go and hoped for the best. Of course, it didn't work out that well. The rich whites got a lawyer and sued the county for holding them in jail overnight.

I got two gut feelings about this case. First, it is stupid that rules have to bent to keep people happy about race relations. Second, you had to be doing something wrong to get pulled over for DUI, make the officer feel that you certainly are drunk, and then be taken into jail for a breathalyzer. That doesn't deserve a big cash reward. Of course, most people say I'm an idiot.

Red light cameras

[swb]

I think where this is more interesting are things like "managed" red light cameras. In Minneapolis, we're getting them soon, and the system is actually run by a third party. They review photos and send the incriminating ones to the police, who then review the photos and decide whether to issue a moving violation.

What I want to know is, who owns the pictures? Sure, the cops own the ones that they get from the company, but what about the others? Are they private property or is everything produced by the cameras public property?

Let's say I'm accused of some crime and my defense is I wasn't there, I was driving around. And I drove through a bunch of red light cameras (without necessarily running a red light). Can I get access to the photos?

Re:easy solution

[oniony]

Hmm, you sound like a well-balanced, liberal kind of chap.

So the possibility that someone may have a genuine concern over the reliability and accuracy of a police enforcement device doesn't enter into your world-view of human rights then?

Best not put too much vinegar on your chips tonight.

Irish Voting Machine source

[rsynnott]

This was a problem here; the government tried to set up voting machines, with the contract being that once final delivery was complete they'd be given the source. They were used in some constiuencies in one election, then abandoned due to public unhappiness with them and a failure by the company to present the source. They're still lying round in a warehouse somewhere, and it looks like they're staying there for the time being.

As a matter of fact, do not trust these things.

[WindBourne]

I used to work in a medical lab (first degree was in Microbio/Genetic Engineering). Many times, equipment is not calibrated correctly, or even the test underwent "sink testing". In addition, I have seen mistakes made on the code for doing calculations that resulted in wrong answers going on the door (and that was at a major lab). I am not wild about drunks being on the road, but I hate more seeing inocents being railroaded.

Re:That's insane...

[EastCoastSurfer]

There is no need to dispute video/audio recorders as devices. Experts can agree on their function and how they work is clearly documented everywhere. Biometrics are already challenged everyday in court.(How accurate is this finger print match? How many other people could this partial match?)

The main part of this case is that the law says you are drunk with a particular BAC. It is the defendents right to see how law enforcement calculates that number and challenge the process with his own expert if he wants. A bloodtest for example, can be invalidated if they use alcohol to sterilize the area before drawing the blood. For all we know the software in the test in question contains a rounding error that could invalidate it's tests.

Re:Slip of the mind..

[the_xaqster]

Just a cautionary tale..

Years ago in my old home town, the 30 limit on a particular piece of road was moved 200m down the road, away from town. This was previously a 60 limit, a nice big wide road, with no houses or turn-offs on it. This was done at about lunchtime. That evening, the police stopped everyone speeding (doing the old 60 limit) down this section of road. All were asked if they had seen the new speedlimit signs. Most said no. All were let off the speeding charge with a warning. 2 weeks later, everybody who had said that they did not see the new signs was summoned to court for driving without due care and attention (if they did not see the new signs, they could not have been paying attention, right?). Bigger fine, more points!

Moral of this story? Keep a lookout at road signs, even if you have driven the same route for years!

Re:Not wnating to set a precedent.

[Anonymous Coward]

My parents have a home breathalyser and I was using it so I could drive home one Christmas, then I had a flavoured chocolate and my reading jumped for 15 mins till the flavours left my mouth...

Experienced something similar with UK speed camera

[pandrijeczko]

My other half was captured by a speed camera allegedly doing 38mph in a 30mph zone. She's never been sure if she was actually speeding but, when she was sent the photograph taken by the camera, the time the photo was supposedly taken was half-an-hour too early. (Fortunately, she was coming home from a doctor's appointment at the time so knew almost the exact time she passed the camera.)

When we raised the question of the calibration of the camera, we were fobbed off with a letter from the police about all cameras being synched to an "atomic clock" and there being no possibility of an inaccuracy.

I then asked for technical information regarding the synching method used but was refused.

I then wrote a final letter stating that we would fight this in a courtroom and would expect proof that the camera was accurate to be demonstrated in front of the judge. I also demanded that prior to the court case, I would require technical information on camera timings so as to prepare a defence case.

The upshot of this was that the case was ultimately dropped.

Innocence knows no bounds

[Anonymous Coward]

You must know only extraordinarily humble people, that don't have an inflated sense of their driving prowess.

Re:Sounds like a huge open-source business opportu

[mwvdlee]

I went to a technical school where we were all required to do an electronics graduation project.
One group wanted to make an alcohol tester, they asked around with the police but couldn't get any information so they wound up having to invent the thing themselves (sounds a lot harder than it actually was, basic components are available).

In the end they had built in a few weeks time a machine which was much cheaper and notably more accurate than the device the police uses.

Now "cheaper" can be easily explained by the quality of the casing, being hygenic and such but "accurate"... this had me seriously doubt the quality of the devices the police use.

p.s. They apparently had a great time testing the machine!

Not the public

[Martin Spamer]

Does the Pulic have the right to how these devices work, or just the procedures on how they are used?

This is not the public it is the court.

In order for the prosecutor to demonstrate something to the court beyond a reasonable doubt, one of the key areas of scrutiny is that the chain of evidence is established from the act to the court.

Interesting problem..

[bmajik]

if there's one thing i despise more than drunk drivers, it's cops and judges just saying you're guilty because they can, with no technical accountability.

I recently defended myself in a moving violation case. I sat through the 6 prior cases where people admitted they were guilty but were basically just sad about getting a ticket (the usual crying-on-the-stand trick). One case even had its fine reduced! The girl skidded off the road and ran over a street sign!

Then my case came. When i cross examined the officer i caught him in several logical fallacies and he could not say exactly how i was guilty of violating the statute, as written.

But, none of that really matters. The judge decides what he wants to, and thats that.

I was pulled over, by the way, because last winter, when i pulled away from a stop light, my tires started spinning on my all-wheel-drive-with-snow-tires 130hp winter car. Instead of doing something dramatic like slamming on the brakes or abruptly lifting off, i just rode out the wheelspin, keeping the car in my lane and straight ahead, etc.

Cops dont "like" wheelspin, so i got a ticket. Specifically, my ticket was for "driving too fast for conditions". The other people that were convicted of this offense ran off the road, skidded through intersections, etc. One almost t-boned an officer.

I was particuarly amused with myself when i asked if i was violating the law the second the light turned green, given that my instantanous speed was zero but my tires were spinning. When i was stopped, was i driving too fast for conditions ? :)

Nevermind that last weekend i was teaching _other_ people how to drive safely at a racetrack. Nope, i'm a public driving menace, apparently. So says one agitated officer, and one judge.

Re:Police taser video

[oneandoneis2]

What exactly has that got to do with closed-source measuring devices in legal situations??

The only thing going through my mind watching that video was "She's a total fake." I've done a fair amount of first aid training, and one of the first things we're taught is "The more noisy the casuality, the less there is wrong with them."

If she'd been in enough pain to justify that much complaining, she'd have been incapacitated. She wasn't in agony, she was just throwing a tantrum.

No sympathy here.

Re:OTOH

[Shakrai]

I would rather send a person to jail than have someone who was drunk, get off on a technicality then kill your sister/mother/father/brother/best friend 2 weeks later because they are drunk.

You'd rather send an innocent person to jail then risk letting someone drive drunk? That's a bit of a slippery slope there. We have burdens of proof and innocent until proven guilty for a reason.

Besides which, the whole issue of DWIs is another issue (like terrorism or the war on drugs) that is being used to take away our rights. The minute I start a car in most states I give up my right to protection from unreasonable search and seizure (implied consent laws). And as horrible as drunk driving can be perhaps you ought to take a look at the NMA DWI page and learn some of the myths and facts about DWIs and the 0.08 laws in particular.

And before some AC goes pointing out how I'd feel differently if I lost a loved one to a drunk driver let me say that my sister was run over on the sidewalk by a drunk driver. She spent three months in the hospital and it took a year before she could walk again. He had a BAC of 0.18. The cops didn't catch him because they were too busy sitting outside of the local bar waiting for some poor bastard who was a hair over 0.08 instead of patrolling around looking for people who were actually driving badly, such as this fool who was on his way to the convenience store to buy another 12 pack.

Re:Sounds like a huge open-source business opportu

[Anonymous Coward]

but a defendant has no right no know the details of a listening device (for a mobster or terrorist suspect), a radar gun, or a breathalizer. That would just give them the ability to thwart it.

Aw heck, why not extend your logic a little further. Why don't we hide the ACTUAL laws from people? That way criminals will not be able to use the loopholes either. Hell, this way people won't even know if they are breaking a law. Plus, this way we can make anyone a criminal that we want, no more trials.

You may think I am being a ass with this comment. But it has happened in history before. If you get a chance, try reading "The gulag archipelago". It is a tough read (translated from Russian), but the first few chapters deal with the Soviet legal system. They enacted laws that were imposible to NOT break (a gathering of more than three citizens is some form of a subversive gathering, so taking the bus to work, means you are guilty of subversion). This ensures that at any given time, they can scoop you up, and ship you off.

I know people don't like the transparency that we demand from our legal system, right up until the cops are at your door stating that "The crimetastic5000 has determined that you are a terrorist". Wouldn't you like to know exactly HOW the crimetastic5000 came to it's conclusion? I know I would. History is full of bunk science ("ohh, too bad about the shape of your head, the chart here says you are a paedophile"), if it is never explained or refuted, how can it be trusted?

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[offtopic]

Simply brilliant.