Slashdot Mirror
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 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.
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).
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Does the Pulic have the right to how these devices work, or just the procedures on how they are used?
"Two things are infinite: the universe and human stupidity; and I'm not sure about the universe." Albert Einstein
This should be obvious, if you want your evidence used in court you have got to supply ALL OF THE METHODS. If I were a cop or DA I'd be screaming at the salesmen who sold me these machines that will not hold up in court. Some competitor, who has machines that can stand up to scrutiny, ought to be making a killing on this.
Linus should go to a MADD meeting:-)
Indeed. That doesn't stop the "can you verify that this evidence is trustworthy" issue from being real.
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?
Although DUI is mentioned, it's really got next to nothing to do with the story in question. The story's got to do with being convicted of something/anything because of evidence provided by an unknown method. Nobody's trying to defend drinking and driving, exactly. It's about whether or not the method of producing evidence is sound. Which I would say is exactly why the poster of the story mentions other things such as radar guns...
This is not a wedge issue that should be used to push open source. This should be filed under 'ignorance of the law, and by extension ignorance of the tools used in law enforcement, is no excuse'.
And unless the company that makes the analyzer has some sort of vested interest in the conviction of X number of criminals, and therefore an incentive to produce skewed equipment, I don't see how the detailed functioning of the equipment is relevant to the cases.
Jherico
What can the average user can do to ensure his security? "Nothing, you're screwed"
Reading the article, apparently only Seminole County is applying the statute in such a manner, other counties in Florida say the state cannot supply something which they do not have, but it's not fatal to the Breathalyzer result being admittable as evidence.
People Talking in Movie shows.. people smoking in bed.. people voting republican.. GIVE THEM A BOOT TO THE HEAD!
If a machine says you are DUI but you are in fact not, wouldn't you like to find out how the machine works so any flaws could be found?
Harald
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.
Powered by onion juice.
There should be a possibility to check evidence in court (conspiracy theories go here - red light camera manufacturers doing image processing and shooting your car every time it passes based on the plates), even where containing theories of possible in the technology used for evidence gathering, yet still there is a problem with any speeddriving idiot claiming "we don't know how the radar gun work - your evidence doesn't count". Certainly, most of the radar guns are working totally correctly...
I have a really elegant proof for Fermat's last theorem. If this sig was only a bit longer...
And if it were open-source (the breathalizers), the DUI people would be handled properly. Now, the people are getting away with potentially killing people.
Make your computer faster: rm -rf
Perhaps that's true.
Oh look I've used my new guilt-o-meter and it says you committed 9 murders... Don't ask me how it works [and in turn determine if it actually works...] for that's proprietary.
Who knows, maybe he really wasn't drunk [or that drunk] and the device is buggy or mis-calibrated? That's why we have a DEFENSE in the first place.
If you're just going to trust whatever "magic happens here" box the police are using without actually investigating whether it works... then you might as well have summary convictions without appeal [or defense]. Then we could just walk up and down the street and write people up because our "guilt-o-meter" went off.
For every "asshole who got through a loophole" there are others who "got wrongly convicted" of an offense.
Maybe next time the cops purchase equipment they'll make sure they can be independently audited. It's not the defendents fault the cops are using [effective] defective equipment.
Tom
Someday, I'll have a real sig.
This is the 2'nd post in this story. So it can not be redundant. But it is also on-topic.
I prefer the "u" in honour as it seems to be missing these days.
1. Create Open Source breathalyzers, radar guns, etc. 2. Advertise to all defendants everywhere the closed-source loophole in the prosecutions' cases. 3. Sell your versions of that equipment. 4. PROFIT!
So what stops the company from including a test for some other, not-so-common health-neutral or mostly neutral substance, and make the tests return "no alcohol" if the substance is detected, no matter how much alcohol is there?
Say, you're a friend of the manager of the company. You're driving drunk, but you know "the secret". A cop pulls you over. You pull out your lighter and take a few deep breaths of the gas from the lighter. Not a thing commonly done, but and mostly harmless. The device detects you're a friend of the boss and displays alcohol level in the allowed range, despite the real readout.
Any company is allowed to keep their trade secrets. It's just that government, just like any other customer may have specific requirements about the product. Like, access to the source code. You don't provide it? Sorry, we'll look for someone else to do business with. Same as intelligence won't like devices that provide "service backdoors", like military will pick EMP-resistant options over ones that can be easily fried by the enemy, wherever legal cases are involved, transparency of the design is essential.
Anagram("United States of America") == "Dine out, taste a Mac, fries"
It's not really "evidence produced by an unknown method" (the company that makes the kit knows it) just one that is not revealed to the defendant.
But this is stupid: does fraud over a telephone line become acquit-able because the defendant doesn't know how a (software-controlled) telephone exchange works and the telco wants to keep its code secret?
Why does the defendant have a right to know how equipment used to obtain evidence works? As long as there exists an independent process that has evaluated the equipment's operation, and found it to be valid and not biassed in favour of false positives, say, this should be enough. I assume that states do actually check the equipment used for breath tests (do they?)
If this position is taken to an extreme, any proprietary information that a company is reluctant to reveal in a court case could be cited as a reason for acquital.
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):
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.
Me (Blog)
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.
I prefer the "u" in honour as it seems to be missing these days.
I'll agree with you 100% that more people need to take responsibility for their actions and think before they act. In particular drunk drivers. Luckily, I've not lost anyone to this, but had some close calls. Like when my sister (and her 3 kids) were rear-ended while at a red light by a drunk driver doing 50mph. Almost got pegged quite a few times myself by some drunk yahoos.
.08 (drunk in MA), if the margin of error was 20%-30%, that's a fair gripe.
Having said that, I don't see why such machines shouldn't stand up to scrutiny. Say you blew a
Do any companies actually release any type of information regarding their accuracy?
-William Shatner can be neither created nor destroyed.
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!
There needs to be a central repository of scientific methods (the patent office or something similar) and a body which guarantees that such devices follow the specified method sufficiently for use in law enforcement.
That way you have you answer to 'How does it work' AND you have your closed source option.
This problem can't be so hard. "The state" has to either:
- produce or commission its own breathalysers and / or blood alcohol testers, or
- get hold of and keep on standby expert witnesses who can answer the questions in sufficient detail to convince a judge and / or jury.
The fact that neither can be fulfilled at the moment, and that it was (well, predictably) a defendent who had to point the weakness in the current state of affairs is neither here nor there: If "we the people" want to put someone in the slammer, we have to be able to tell them why we are doing so, and if we set up things so badly that we can't, they should indeed go free.
Who's to blame? Probably some mid-level bureaucop who rubbed his/her hands in glee when the saleperson showed them the single button and all the blinkenlights, and signed the purchase order for three dozen units without booting his/her brain.
Sic transit gloria mundi. Not that it can't be fixed, tho.
yes, we have no bananas
.. is letting people off the hook, then its failing to perform the job it was hired to do: provide evidence in prosecuting law-breakers.
There should be a deep investigation into this issue. After all, the public trust has been violated. Criminals are going free because of business.
; -- the corruption of government starts with its secrets. a truly free people keep no secrets. --
I would say the public is entitled to at least have access to the user's, maintenance and other available technical manual(s).
As most of us know, electronic devices have +/- tolerances that could very much affect the outcome of a police measurement.
For example, I remember reading in a tech manual that radar speedmeter readings can vary by as much as +/- 5%.
It's not much, but it could make the difference between no fine, or a smaller and a bigger fine.
It's known how those work though, and in the case of things like TVs, they're even used daily by everyone, surely they're not "faked".
However the point is you can't find out how the breathalizer works, they won't let you.
Great. The problem is your anger is misplaced.
First off, how do you know he was DUI? Because some blackbox that you can't question said so? NOT GOOD ENOUGH.
Second, you really ought to be angry at the state for buying equipment they can't prove works in court. Agreeing with justice when it favours the wicked isn't always a bad thing.
But of course you feel this way because you have yet to be on the wrong end of a miscariage of justice...
Tom
Someday, I'll have a real sig.
thanks for ignoring "It's about whether or not the method of producing evidence is sound." and making it your argument against what I just said, heh.
They are guilty. You know it, and I know it. It seems that they are not disputing the fact that they had been drinking. They are focusing on the way they got caught.
You don't have to be drunk in order to be a danger to other road-users. Again: they don't seem to be disputing the claim that they have been drinking, they are merely whining about the tool that was used to catch them.
Lesbian Nazi Hookers Abducted by UFOs and Forced Into Weight Loss Programs - -all next week on Town Talk.
Would the government, especially this one which is even loathe to open their fly to take a piss, be likely to just create an open test? Then, regardless of what performs and how it's designed, as long as it demonstrates it means the Government Authorization Test, it's good in Uncle Sam's eyes. Even more diabolical would be the idea that by opening the code to such devices, there are DRM issues associated. Could they be sneaky enough to link the DMCA into this decision, issuing a counter-claim against the judges for issuing their ruling? Devious minds think alike...
...tizzyd
"They are guilty. You know it, and I know it. It seems that they are not disputing the fact that they had been drinking. They are focusing on the way they got caught."
... PROVEN ... guilty. Without scrutinizing the box you can't prove guilt.
You seem to have no clue what the legal process is. Your INNOCENT until
There is no more discussion worth having on this point.
And if you call upholding your rights "whining" then again, you're living in a bubble that has yet to be pierced...
Tom
Someday, I'll have a real sig.
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.
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!
I'm just here to regulate Funkyness
Again: they don't seem to be disputing the claim that they have been drinking
Drinking and driving isn't a crime. Drinking until you're intoxicated, then driving is a crime. Don't know about US law, but I do know that in Canada, if you admit to the crime that's it, you proceed to sentencing no matter what you'd like to argue. In Canada you could also submit a "no contest" and accept the charges without necessarily admitting guilt, though you'll still be sentenced. They'd have to dispute the fact that they were driving drunk to result in a not guilty.
Can't you see that citizens' rights are at stake here? Suppose that the breathalyzer manufacturer built a special "feature" into the scanner that allowed the officer using it to cause a "false positive" scan? Suppose the margin of error was +/- 10% and the person being charged with a DUI blew a .08% (the legal limit in my state). Suppose this person was you or someone you care about!
Remember, when judges de-segregated the schools, they were "legislating from the bench", too...
If the working of the equipment is not essential for a conviction, why bother with the details? Why analyse the full US phone system if the case hinges on witness declarations and a financial trace? Yes, the details of phone-tap equipment should be public to prevent tampering with the records, but not the irrelevant details of switching equipment.
extern warranty;
main()
{
(void)warranty;
}
That goes directly to the video; you will want to prepare to adjust speaker volume and your blood pressure as you watch.
Linked from Hullabaloo.
We don't like disrespecting authority in this country. Nor do we like open documentation of how police methods work:
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.
Gentoo Linux - another day, another USE flag.
If, without an explanation, the gizmo would just be a magic box in which magic happens that declares people innocent or guilty, or if there's any possibility that it's not behaving how it's supposed to, then I'd say an analysis of said gizmo is justified. Railroading is bad for your nation's health.
For the love of God, please learn to spell "ridiculous"!!!
If this avoids that one person unjustly accused of DUI goes to jail, it's a good thing, notwithstanding how many real DUI people get off with that.
It's better to be the foot on the boot than the face on the pavement. ~~ tkx Kadin2048
NEVER accept any measurement that doesn't include error bars.
if a measurement without error bars isn't good enough for a 1st year student's meaningless experiment, why should it be good enough for you and your money and/or criminal record?
"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.
> This should be obvious, if you want your evidence used in court you have got to
> supply ALL OF THE METHODS
No, you should only have to show that it works, not how it works.
> Linus should go to a MADD meeting:-)
Only if it doesn't clash with his AA meetings!
" This sounds more like a worst case scenario of judges legislating from the bench"
No, this sounds like a best case scenario of judges UPHOLDING the LAW.
Specifically the right of the defendant to cross-examine his accusor.
If they will not allow inspection of, and verification of, their software/hardware, then they are unable to demonstrate the reliability/unbias of their results.
IT's no different than someone coming to a court saying you are a thief, but not able to prove how they know that.
"How much of the public are the judges willing to put at risk to stroke their own egos?"
How much of the public are these judges protecting from unlawful accusations? Again, if you cannot dispute/verify the method of finding a person drunk, how can it be said that they really ARE drunk? "Trust me?" BS! I don't trust ANYONE in power anymore. They prove their case like they should have from the beginning.
"If they have a problem with the manufacturer then take it up with the state. If the state does not have a requirement of disclosure then by what basis do the judges operate?"
The basis of "the right of the defendant to cross examin his accusor". It's part of LAW. All these judges are doing is upolding your right to confront your accusor.
If the manufacturer cannot/willnot demonstrate how his device works, then it cannot and SHOULD NOT be used to accuse people of anything.
NO SECRET TRIALS. This is America, not the U.S.S.R. or Nazi Germany!
"How can they not apply this to speeding tickets, parking meters, or are items of revenue enhancement strictly excluded from this test?"
Maybe it has? MAybe those manufacturers can easily demonstrate how their equipment works? After all, parking meters are simply a clock. Speeding tickets could be either from a radar gun, or a cop matching your speed and looking at his speedometer.
Quite frankly, while we all may abhor the idea of a criminal being let go "on a technicality", the fact that those "technicalities" exist is to protect YOUR rights. If you cannot understand this, then you seriously need to re-learn our justice system.
No, it's about whether the method for gathering evidence is "generally accepted". And the use of a breathalizer test is generally accepted, and this kind of ruling only falls under the category of a rogue judiciary.
The problem here is not that the device code is closed source, but that we're talking about activist judges who once again want to bypass the written law. In this case, you're letting off a guy who could have killed someone due to his stupid actions. And yes, in this case, the judge is defending the drunk driver.
one of the most ridiculous candidates for proprietary, closed-source code.
Innocent until proven guilty. "The magic box says so" is not proof.
.
The entire point of a government split into three branches (Judicial, Legislative, Executive) is so that each branch provides a measure of resistance to instability in the others.
However that is beside the point, as you seem to have confused "legislating from the bench" (which is part of the job) with following the procedures laid out by the law.
If their egos grow because they know that they are doing their best to uphold the law then that is merely the consequence of high job satisfaction. . .
Finaly, with regard to this not applying to "items of revenue enhancement" (great wording by the way) have you checked the fines for a DUI? They are generally not light. . .
Building a better backup.
Zettabyte Storage
I'm not completely familiar with the testing in US. but here drivers have right to decline the breathalizer test result if it's near the legal limit.
If driver denies it, the police will take him to hospital and take a blood test to find out the actual blood alcohol level.
Of course it takes time to drive from the stopping place to hospital, but doctors can estimate the level since the time of breathalizer test is booked already and they can check the weight and height themselves to estimate alcohol burn rate more accurately.
Now if the blood alcohol level turns out to be lower than the legal limit after the blood test, driver walks with warning, otherwise he gets fined.
There are no atheists when recovering from tape backup.
public boolean duiChecker(double perpAlcoholContent)
{
return (perpAlcoholContent > STATELIMIT);
}
Satisfied? You damn OSS people beat it out of us.
Yeah? Well I think you're overrated too.
"Could this apply to other situations where technical means (radar guns, video surveillance, wire-tapping, etc.) are used to gather evidence?"
Yes, No and No. I think you are missing the point here... breath tests and radar guns use technology as evidence while video survelance and wire tapping use technology to acquire evidence. No one will ever give a damn how a video recorder works as long as the defendant is clearly seen commiting a crime in the video (no comments about image manipulation through gimp/photoshop please).
Do you know what that term even means? Legislators create laws. Judges just nullify the bad ones or when they're improperly applied.
I would love to see these judges SUED and jailed if one of the people whose case they dismiss subsequently kill someone on their next DUI.
This is a joke, right? Which fairytale did you believe that told you the government is responsible for ensuring your safety and happiness? And, under what theory of law do you think you can sue them when they don't?
If they have a problem with the manufacturer then take it up with the state. If the state does not have a requirement of disclosure then by what basis do the judges operate?
What is this ranting about? Judges act independently of "the state". That's one of the signs of a republican form of government. And what do you think they're doing? By striking down a few of "the state's" cases, they are "taking it up with the state". It doesn't matter what the state's "requirements" are. The judges "requirements" are proof beyond a reasonable doubt. The state can either live up to that, or continue to lose cases.
"I assumed blithely that there were no elves out there in the darkness"
If a court is going to invalidate evidence for lack of transparency, how about the most ridiculous candidate for secret, proprietary source codes: voting machines?
> This seems like a really weak defense and I'd be interested to know what the justifications the
> judges are using to make such a ruling. It seems analagous to DNA testing. Should a rape suspect be
> able to get off because he questioned how the DNA scanner works, and the court can't provide an answer?
Actually, yes. It has long been the standard in US courts that anyone presenting scientific or technological evidence -must- stand up to cross examination on details of the process.
DNA testing has often been challenged on this basis, and so has fingerprinting, drug testing, and other forensic evidence.
Throwing out the cases because the source is not available -may- be excessive, however the article indicated that the manufacturer has not been able or willing to provide answers to other questions as well.
It makes a -big- difference how some tests are conducted. Questionable data that can't be verified -should- be inadmissable.
Uh oh... somebody doesn't like the way something goes in court and immediately calls it 'legislating' from the bench. I wonder how he (assumption) voted in '04.
In TFA the judge says "Florida cannot contract away the statutory rights of its citizens". See that word statutory? Ever wonder what that means? The use of that particular word denotes actual, codified law in the books somewhere that guarantees those charged with a crime something along the lines of the right to understand how evidence was gathered against them.
Refer back to that word statutory - it appears that the state does have a requirement of disclosure.
I'll bet it does apply. Q: How does a speed gun work? A: http://makeashorterlink.com/?E1ED3343B and has an accuracy of .x +/- mph Q: How does the parking meter keep track of time A: A mechanical or electronic timekeeper which is accurate to within .001 seconds/day
Compare this with Q: How does your test meter detect alcohol and what is the accuracy A: None of your business. Q: So you're saying that if my BAC is .05 your machine could overrepresent this and show .09? A: None of your business. Q: If I eat a tuna sandwich does your machine consistently give false positives? A: None of your business. Q: If I fart will your machine generate a false positive? A: None of your business.
Can you honestly say that you don't have a problem with this? Next time you're in court I will hook you up to a polygraph. You must accept the results without question. There's a red light and a green light on the top - if the red light illuminates then you're guilty and go to jail. No, you aren't allowed to know how it works. Trade secret. But you wouldn't have a problem with this, right? After all, any judge who excludes this is obviously legislating from the bench and needs to be sued if a murderer gets off. Right?
Perhaps allowing a judge to be personally held accountable if he lets somebody back on the street after a 4th or 5th OUI conviction but to punish a judge for dismissing the charges after one's rights were violated due to improper collection of evidence is out of line. If a judge convicts a guy 10 times for OUI but the bum gets parole every time and then goes out and kills somebody you'd be on to something.
Other than that I'd say you're blowing smoke. Better hope that the testing equipment doesn't register smoke as EOH fumes or you're gonna see some jail time. Or maybe just some serious probation.
If the g'vt kept the data on you that google does you'd better believe you'd be calling it "doing evil"
Judges demanding that the defence can scrutinize the evidence... HOW SHOCKING!
If the state does not have a requirement of disclosure then by what basis do the judges operate?
Because the defence still has a FUCKING RIGHT TO SCRUTINIZE THE EVIDENCE!!!!!!!!
FRA: STFU GTFO
The people in jail that were not DIU are far worse, don't you think?
And if the vendor (RTFA) refuses to show the court the source code, it's because something is shady, I would bet. It's not like the court is trying to make them GPL the source; the court just needs to be sure the thing works.
Anyway, are judges in the USofA liable for their decisions? I would think that for that, one would have to prove bad faith from their part. (Judges and prosecutors in Brasil are NOT liable for their opinions and decisions in the line of duty... unless one can PROVE bad faith beyond any reasonable doubt.)
It's better to be the foot on the boot than the face on the pavement. ~~ tkx Kadin2048
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
of this article is not that drunken drivers' charges were dropped, but if people should be prosecuted because a black box (whose function you don't know) said you're guilty. I could build something with a green and a red LED, and have only the red LED light up, meaning that you were guilty of whatever crime someone wanted, would that mean that you broke a law?
Send email from the afterlife! Write your e-will at Dead Man's Switch.
mmm, you can't question if something works unless you know how it works.
For instance, maybe the radar gun works different at night? [making that up but you never know]. If you didn't know how a radar actually worked you wouldn't know to test [or demand that be tested].
Also it's the right of the defense to perform independent testing [just like they can question witnesses...].
I don't see what the big deal is. As a company providing law enforcement equipment/software/etc you should have known WELL in advance that you'd be called upon to explain how it works.
If you're business model depends on selling law enforcement tools that cannot withstand scrutiny... you SHOULD be out of business.
Tom
Someday, I'll have a real sig.
I've always wondered just how closed sourse can be legal. How can anyone know that a closed source project isn't just copied from someone else?
You must know only extraordinarily humble people, that don't have an inflated sense of their driving prowess.
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!
Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
In some states the driver can reject the portable test for some test in the station, but that's usually just a more expensive breathalizer test, although some larger stations have nurses on hand or at least people qualified to take blood for testing. In these states it is indeed a tactic some people use to buy time for their BAC to drop, however it doesn't happen often as drunk and clever are many times mutually exclusive states.
It doesn't seem that the judges have a problem with the manufacturers, but rather the people relying on the machines do.
It will work like this: judge dismisses case because manufacturer is unable or unwilling to disclose how it works. Cops get mad, go to bosses and say "get rid of these machines", cops get new ones from manufacturer who is willing to disclose how it works (this is breath alcohol testing - it's not rocket science) and everyone's happy.
Why wouldn't the manufacturer disclose the methodology? Perhaps because it's unreliable; perhaps there are false positives associated with it; who knows. We never will.
Did someone say false positives?When they came for the communists, I said "He's next door. Take him away. Goddam commies."
How something works, isn't interesting at all for some cases.
I believe the defender wanted to know how it works, just in order to know if they did it the correct way.
A certification (provided by a independent authorithy) should be as good as showing how it works.
Once you have a independent authority confirming it is working, this should be enough.
The authority has to explain the methods used in order to grant the certification in a public report.
If the device has been certified to work, all the rest doesn't matter.
Here in Australia the breathalyser test only decides whether or not you are given a further blood test - it is the blood test that actually becomes the evidence that will or will not decide if you were over the limit (this is how suitably well-connected individuals avoid DUI charges - if you can stall for long enough so that the blood test return zero (or the legal equivalent thereof) the prosecution has no case).
I'd be surprised if that weren't the case everywhere - breathalysers are quite sensitive to residual alcohol left in the mouth for up to 20 minutes after the last drink, which can easily double the reading that might otherwise apply.
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.
Something else that should be looked at closely is the blatant trampling of the 5th Amendment in DUI cases.
In many states your license is revoked for 1 year if you refuse to blow into the breathalyzer. Assuming you were under the influence, you'd be incriminating yourself if you do use the breathalyzer.
Many people will reply that having a license is a privlege and can be revoked at the state's whim. I then ask those same people if other privleges such as voting (which is not an inherent right in the USA, but ought to be) should be taken away on the spot if you fail to give the authorities your DNA when they ask for it.
Yeah! Yeah! Let's make them answer for their behavior !
/. is a bunch of nerds at a million typewriters. It's not a political conspiracy determined to undermine your beliefs.
I'm drawing on some distant memories here. When I was in high school, the NY State Police paid us a visit to give a presentation on DWI/DUI to scare us into compliance, so I'm drawing on my memory of that presentation fifteen years ago.
I don't know about Florida, but here in New York State, IIRC, you have the right to demand a blood test if you blow above the legal limit on a breathalyser. Of course, you have to demand it immediately (otherwise it won't be valid), but if the blood test shows differently than the breathalyser, you can use that in evidence.
Now, this doesn't really address the issue of how the breathalyser and the blood analyser actually work, but it does allow the possibility that two different machines, using two different methods, and possibly made by two different manufacturers would both indicate that you are tipsy, and if they are in disagreement, you can throw doubt on the case.
I want to say that I recall the blood test trumping the breathalyser if the blood test says you're sober, as long as the tests are performed within 30 minutes of each other, but don't hold me to that.
www.wavefront-av.com
keraneuology 4 the win!
This was in the UK. The main problem that people had was not that they were charged for driving without due care and attention, but that the police on the scene made no mention of this possible charge, and told everyone thet they were being let off with a caution.
Getting a court summons on a different charge 2 weeks after an incident that you were told you had been cautioned for tends to offend.
And there were no signs indicating the change in speed limit.
I'm just here to regulate Funkyness
I know everyone is happy about this, but taken too far it could be a mess. Suppose he looks at the source code and says that the code works, and now wants to look at the microprocessor opcodes, or the compiler, or the alcohol sensing circuit's schematics. The judge will eventually turn that down and try the person on the available evidence. This isn't some catch-all to get out of jail free.
I'm well aware what it is. Just because you are set free does not mean that you are not guilty of the crime you were accused of. Was O.J. innocent? Really? How about all those criminals who walked because of some technicality? Were they innocent?
Drunk-drivers of that region have figured a great way tho shirk their responsibilites: as about how the machine works, and you are set free.
Of course, it is possible that those people really weren't drinking and driving. But I think that they most certainly were. Stunts like described in the article don't really reinforce my opinion of them
Lesbian Nazi Hookers Abducted by UFOs and Forced Into Weight Loss Programs - -all next week on Town Talk.
It seems strange to me that the breath test is enough to convict someone. The police over here wont even take the test if you've had a drink within the last 20 minutes because it gives false readings.
I think that if you're from the UK you probably have a somewhat skewed perception of the spaces we generally operate in over here. If you're 30 minutes from a police station when you're pulled over, you have plenty of time to sober up beore you get there.
I know really nothing about any details of the open source vs. closed source debacle, nor do I want to, but I wanted to share this dream I had this weekend. I had a dream that the US was secretly attacking Japan because the Japanese were committed to an open source programming law that they passed and we were trying to tear them down. But it was a secret war, only in a few tech sectors of Japan, where they were burning buildings and such. It was a really weird dream, and I blame it on Slashdot.
Peace out, homies.
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.
Innocent until PROVEN guilty. Where is your proof? Maybe the test has a error margin of 15% is that acceptable to you that he is driving drunk? Not for me. I think this case is justified. I think the company that makes these tests has burden of proof. Should they supply the source code? I dont think there is a reason too. Perhaps demonstrate a test or two in court with blood tests to prove accuracy, or submit some independent reviews of their products. But they should have to PROVE their test works. How do you know the tests we have generally accepted having changed over the years and are no longer accurate?
I'm surprised the police in Florida haven't started doing this too..
Blaming GW Bush for the Iraq war is like blaming Ronald McDonald for the poor quality of food.
Yeah, yeah. I know what the term means. But I also know when it doesn't apply. There is a line between an all-powerful legislature and a judiciary that is respectful of individual rights.
Sorry, but your analysis of Roe v. Wade is ignorant of the facts of how our government works. Congress neither grants rights nor solely enumerates them. Rights exist independently of government. And any branch can recognize them. In fact, the judiciary is the branch that most often does so. To call this "legislating from the bench" is just ignorance of the origins of rights.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Roe v. Wade was bunk for a lot of reasons, don't get me wrong. And, you're right, it's a prominent example of judicial legislation. But not for the reason most fundies think. In Roe v. Wade, the Supreme Court went *way* beyond just determination of rights and their precedence. The chief justice took vague expert testimony, turned it into a statistical approximation of the origins of life, and put that approximation into legal force by judicial fiat, overturning the approximation then in force for the previous 200 years. Normally, at least 2/3s of that process would be reserved to the legislature.
The case in question here, however, is in no way analogous. All courts recognize that the state has a high burden of proof in criminal prosecution. All courts recognize the defendant's right to cross examine the evidence against him. The fact is, this evidence under no circumstances meets the burden of proof because it is fundamentally inexplicable. All the judge is saying in this case is that no reasonable jury could ever find this evidence as proof, and, even if they did, I would throw out their verdict shortly thereafter. The judge has not created law, but merely recognized the right of the defendant to be confronted with reasonable evidence, not inexplicable magic "guilt detectors".
"I assumed blithely that there were no elves out there in the darkness"
In the UK this covered by the data protection act, which entitles anybody to scrutinise any information held about them by a third party. Similar laws exist throughout the European since this is a EU treaty obligation.
Keep in mind this is DUI and *NOT* DWI. DUI is very subjective and you can be charged with it for any trace amounts of alchohol in your system. You can get charged for taking cough medicine or some breath freshners. Besides, drinking is not illegal. Being intoxicated is. Why should I get hit with severe penalties (at least $8000 in just legal bills) when there isn't a problem? DUI was originally meant to take someone off the road that was clearly impared but didn't meet the threashold to be legally DWI ("just under the limit" they would say). Today it is often used at a check stop when there are no indications of intoxication but the breatholizer shows something. Breatholizers are notorious for being wrong. They even had a spoof on the Simpsons about it. How would you like it if *YOU* were driving home today and got stopped and it says you are DUI even though you have had NOTHING to drink? Cough syrup, breath freshner and so on.
I have a feeling if they disclose the code a lot of people will be outraged and the breatholyzer will no longer be accepted as evidence in court.
How about taking the drivers license of anyone caught smoking crack away - irrevokably taken away as you put it? After all, crack is illegal.
Testing by independent third parties is a great thing for people who trust technology.
Not exactly on topic, but now there are a number of cases with DNA evidence that juries (stupid, stupid, stupid juries) have found not guilty because lawyers use the "that sounds like a lot of scientific mumbo jumbo that nobody could understand and I'm sure that our upright jury will disregard because of its highly scientific and hard to understand mathematical explanation when it's obvious that science is wrong more than it's right. DNA - what a bunch of baloney."
Trying to explain HOW a breath-analysis works to a jury ("You mean that this mere machine - full of rubber tubes and plastic chambers and microprocessors - can analyze one ten-thousandth of a breath and find what it contains? Do you really believe that?") would be difficult.
And that's the slippery slope of explaining such processes and not trusting independent analysis.
The illegal downloads were hosted on a Windows server, which as we all know is closed source. Until we know the inner workings of the software, there's no way to prove if I'm responsible for providing the downloads or if someone else hacked into the system.
Nobody [certainly not myself] are saying that drinking and driving is a good thing. What I am trying to say is at least have your ducks in a row.
... etc ...
... all before he's been able to even question if the little device that has stung him so actually works within the expected margins of error.
What you call "getting off on technicalities" I call upholding your rights.
I mean having a lawyer present is just a technicality too right? If you're guilty why should you have a defense? That just means you can get "off" with the crime!
Questioning witnesses? Why? They're under oath therefore all they speak is verbatim truth.
Yeah it would be nice if these drunk drivers just fessed up and did their time. That doesn't mean they don't have a right to question the way they were deemed to have violated the law.
You seemed to be along the line of "if you were caught you must be guilty". As if law enforcement really deserve that unquestionability status.
I say just wait till someone cries rape in your direction and see how much fun the "guilty before innocent" status you're so desperately trying to stick on others feels on yourself.
I mean suppose the guy really wasn't drunk and he was held for a day in jail. He'd miss the next day of work, have to explain to his boss, have the social stigma of being known for being arrested DUI
Tom
Someday, I'll have a real sig.
This sounds really interesting. Can you post any more information on the subject? It might be fun to have one of these around the house that's home-built (instead of buying one like College Students would.)
Why should I trust the "independant" authority any more than the originating company.
Think about it, companies pay an "independant" to certify their goods. It is in their best interest to certify almost everything, when the occasional slip up happens, launch an investigation, blame something/someone, and continue.
I should be permitted my own expert and opportunity to argue against any evidence/opinion.
In the radar guy/DUI, perhaps the CPU entered sleep mode or something between sampling points, throwing off the time, resulting in bad data.
The point isn't to get off on charges, only to ensure that the innocent aren't punished.
Same in Oz. Though there was one guy who got off because when they tried to take a blood sample he insisted they take it from his big toe, and the doctor refused. Since he hadn't refused the test, but they had no sample, he got off. I think they changed the law after that to specify where the sample was drawn from.
I'm guessing that wasn't on their radar screen...
I would love to see these judges SUED and jailed if one of the people whose case they dismiss subsequently kill someone on their next DUI.
I'd love to see you be falsely accused of a crime, and then found guilty on flimsy evidence because the judge feared being sued on the small chance that you were guilty.
Alternatively, what if a judge was sued by someone who was wrongly convicted and later proven innocent?
In my experience, most of the cost of designing and building something is due to overhead and personnel. Skilled engineers and technicians can be expensive.
IMO, the details shouldn't be in the public. The general theory or usage should be, 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.
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.
My opinions are my own, and do not necessarily represent those of my employer.
I'm going to add this because I'm not sure I was clear enough. All courts, including that in Roe v. Wade, recognize that the right of a live child to life takes precedence over that of a mother to abort him/her, except in very rare circumstances such as imminent physical harm.
That has never changed. What changed in Roe v. Wade was the determination of when and whether a child is alive. While it was previously a matter of observation of signs of life, in Roe v. Wade it became a statistical conglomeration of estimates for when those signs of life occur, based upon the testimony of experts rather than the facts of the case. It is this sort of mushy, compromising logic that is reserved to the legislature, because legislative bodies are more suited to it.
"I assumed blithely that there were no elves out there in the darkness"
In those sticks of the world where I come from breathelyzers are only used in case of suspicion. If the test proves positive then the cops will require a piss/blood sample, taken by a doctor or a nurse. This is the only permissable evidence in court
Of course you can refuse to pee into a yoghurt cup. That won't help you much, though since evading an ordered blood test is considered an admission of guilt and might get you slapped with additional fines for evading the procedure.
I'm not sure how this is applied throughout the rest of Europe, but my guess is that sentenses are based on _actual_ evidence and not on a machine of which its manufacturers assures us "that it works".
ich bin der musikant
mit taschenrechner in der hand
kraftwerk
Here in Ohio your licence is automatically revoked for at least a year if you refuse a breath test, whether you're found guilty of DUI or not. Yay for guilty until proven innocent...
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.
IMO, the details shouldn't be in the public. The general theory or usage should be, 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.
If giving someone knowledge of how your breathalizer detects alcohol in your breath allows you to thwart it, your breathalizer should have no place in law enforcement. Same thing with radar guns. They both do very simple things, that once past the general theory phase just let you know whether or not it was built well enough to actually judge what it is claiming to judge. And sometimes the answer is "no." Of course it is possible to thwart the above... by slowing down or not drinking, but then you need to know when they are coming up.
Even listening devices / wiretaps etc are trivial. If the CIA installs a keylogger between your keyboard and PC, what does it help you to know how the keylogger functions? Or if there is a bug in their room, what harm does it do if during the trial the frequency used comes up? You should be rotating frequencies anyway, and the mobsters should be jamming all frequencies around them like embassies do.
Most law enforcement tools work not because they are rock solid, but because people don't know when they will be used. Once someone finds out that there is a bug in their room, the bug becomes useless, even if the person doesn't know where or what it is. Once someone knows there is a portion of the highway designated a speed trap, the speed trap won't catch them. You don't need details to know that. You do need details to know that you were actually going the speed the machine says you were going, or that your blood alcohol levels were what it says they were.
The ______ Agenda
It's not really "evidence produced by an unknown method" (the company that makes the kit knows it) just one that is not revealed to the defendant.
But this is stupid: does fraud over a telephone line become acquit-able because the defendant doesn't know how a (software-controlled) telephone exchange works and the telco wants to keep its code secret?
Why does the defendant have a right to know how equipment used to obtain evidence works? As long as there exists an independent process that has evaluated the equipment's operation, and found it to be valid and not biassed in favour of false positives, say, this should be enough. I assume that states do actually check the equipment used for breath tests (do they?
By your logic, the "evidence" of psycics should be admissable as witness testimony. But you answer your own question: "...and found it to be valid and not biassed in favour of false positives, say, this should be enough". Validated by who?
1) how do you know they work?
2) how do you know the errors are not intermittent?
It's a well proven fact that misporgrammed voting machines have made serious errors. The sad thing is we only know about the ones that are so spectacular they get noticed.
We require all public meetings to be open and notes kept. We dont allow any secret laws on the books. Why should we settle for closed source software?
The sodtware in these things is not that sophisticated. Not a lot more to it than a vending machine and a data base. Thus there are no trade secret justifications for keeping it closed.
However unlike a vending machine, the transactions on a voting machine are secret. economic transactions always traceable. Buy something on line and you know if the package arrived. Deposit your check and you can check the bank statement. But with voting its intended that no one can reverse engnieer your vote after you step away from the machine.
Thus one has to have more than an "accurate" machine. It has to be provably accurate. Pure electronic transactions cannot meet that criteria and they cannot be trusted on faith without open source.
For all we know most voting machines work fine. But we do know that some do not. And we do know that there are many close elections. and we do know there are even more upset elections with unexpected outcomes.
This is not a good situation to be in. The essence of democracy is not in the voting or the vote counitng as some have said. The true essence is in the willingness of the loser to believe they were proven wrong byt the outcome. For that you need to instill confidence in the process--even when you personally think it is not neccessary. Voting has to be both secret and transparent
Some drink at the fountain of knowledge. Others just gargle.
I don't think so. The city of Zurich uses red light (and speed) cameras for more then two decades and they always took two shots.
They have to, because if you stopped immediately, alas slightly in front of the sensors this is not a finable offense. The second foto is required to prove that the car/bike actually hit the red light.
Same reason for speed. Any damn technical device can claim that you where running Main Street with 220 mph. If you have two time stamped pictures however from a (calibrated) camera then you're just up shit creek with a "this thing is faulty" defense.
BTW: You don't get the fotos (privacy protection reasons, mainly) unless you challenge the fine.
ich bin der musikant
mit taschenrechner in der hand
kraftwerk
No, it's about whether the method for gathering evidence is "generally accepted". And the use of a breathalizer test is generally accepted, and this kind of ruling only falls under the category of a rogue judiciary.
Dropping suspected witches into lakes and seeing if they drowned was an "accepted" method of proving witchery... So, by your logic, you believe that there was nothing wrong with this... It was "generally accepted" after all...
That's a stupid argument because it has no bearing on the conversation. What, are you 8 years old or something?
Knowing how a jet fighter works has no bearing on whether a little box that says "guilty" is actually working properly. And it certainly has nothing to say about my right to question how and if the box actually works in the first place.
Why is "how" important. It could have false positives [e.g. medicines may trigger it for instance] that make that particular test invalid. It's happened before and I'd be surprised if it never comes up again.
Why is "if" important? It may be well outside acceptable error tolerances and the results are not significant or useful in a court of law.
You guys keep saying "getting off"... Prove to me he was actually DUI. That's what this "little box" is supposed to do. "Getting off" implies he's actually guilty and was not convicted anyways. You think getting arrested is the same as "being guilty" because you have no appreciation for what the law actually says and stands for.
Just wait till your on the wrong end of private corporations wet dream and see how much sympathy you get from your peers who will assume your guilty without having been given a fair chance to defend yourself. Of course you can't imagine this because you're an 8 year old brat skipping second period in school to post on slashdot... Go to class you little brat!
Tom
Someday, I'll have a real sig.
Not sure of the law there, but are there any criminal penalties for refusing to subject yourself to a test? I wasn't aware constitutional rights could be waived if that were the case...
I'm affraid not, this was several years ago and I don't really know how to contact the students who did the projects.
FWIW, you can get novelty alcohol-testers everywhere (atleast here in the Netherlands), if you get a more expensive one it'll probably be pretty reliable (though it won't be certified, since, AFAIK, certification also means it can no longer be sold as a novelty item).
Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
We have those cameras for decades and the "I didn't drive, but I won't tell you who" was a time tested defense, which actually worked, since you are legallally not obliged to name the person, if its a direct relative.
The problem was easily solved: Most cameras now take your picture from both sides. If not the picture is always taken from the front.
Which is a double whammy if you're in the process of conducting a phone call without a hands free set. But then again it's good news for bikers :)
ich bin der musikant
mit taschenrechner in der hand
kraftwerk
Too bad they didn't have an internet connection.m m
http://science.howstuffworks.com/breathalyzer1.ht
through
http://science.howstuffworks.com/breathalyzer6.ht
Google is your friend.
Have you read the Moderator Guidelines yet?
Why should any government use proprietary methods or software for any public project? Isn't there an expectation that the public corporation ought to invest public monies wisely? Given a choice between a proprietary option and an open one, it should be a no-brainer. And if open ones don't exist, the government's money is a pretty good incentive for an enterprising person to create one.
As an employee of the U.S. federal government, I cringe every time my employer makes me save a document in Word or Excel--in part because I've seen our network drive littered with now-inaccessible Lotus 1-2-3 spreadsheets from the oh-so-distant 1990s.
...when it comes to elections (esp in the US)
"If you are on fire you can just stop, drop, and roll. If you fall into Lava you are just dead." - my 5yr old daughter
I find that very Orwellian.
Sticking feathers up your butt does not make you a chicken - Tyler Durden
Considering the allegations about diebold systems I can't imagine that this isn't a possible, if not probable, issue.
I used to read Caltizzle. I was a lot cooler than you.
And look at the results! First they have to be allowed to use the same water fountains, then go to the same schools, next thing you know, you've got the WB!!!
(j/k!)
It's been a long time.
Moral of the story: vote out the corrupt public officials who were using this as an obvious moneymaker. If there were a legitimate need to reduce the speed in the area, larger warning signs and an advanced notice would have been far more effective in getting people to actually slow down, as opposed to just being able to catch a lot of people speeding. What was the true purpose, slowing cars down or collecting $$$?
So I was told slightly wrong, they've made it a seperate law. It still doesn't seem like it'll hold up in the courts, but at least it's not as bad as I was originally told (FWIW, the instructor of the traffic safety class told us that the Implied Consent law meant that if you didn't submit to a breathalyzer test you would be found guilty of a DUI).
Pretty scary that you can go to jail just for refusing to take a breathalyzer/other test, even if you WIN the DUI case (in other words you weren't drunk in the first place). Looks like the _minimum_ penalty is to lose your license for one year (again even if you win the DUI case).
OK, it's not just my state, it's many of them and it's being encouraged by the Federal Government using grants and such, here's a bit of the info from this page. Some pretty scary stuff there, the courts routinely ignore 4th, 5th and 6th amendment arguments in DUI cases, so I was wrong about the law not holding up, seems the courts are ignoring constitutional issues in this area of the law.
Under an implied consent law, any person who operates a motor vehicle in the state is deemed to have consented to a DUI chemical test. The implied consent law serves as a means for gathering evidence against a DUI defendant. Although the implied consent law is legal, it fails to mask the law's foundational fallacy that a driver's presence on a state's highway indicates an agreement to submit to a chemical test for drugs or alcohol upon the lawful request of a police officer.National DUI laws operate under the mistaken belief that revocation keeps DUI offenders from driving and thus is the most effective method of discouraging DUI offenders. This belief ignores the reality that revocation does not keep DUI offenders from driving. It only succeeds in taking the DUI offenders ability to drive legally.
Currently, the federal government funds grants to states that implement certain DUI prevention programs. As a direct result, many states have implemented summary driver's license suspension systems into their implied consent statutes for both failure of a chemical test and refusal to take a test. Under the guise of justice and public safety, states have managed to circumvent a suspected DUI offender's constitutional rights and legally discourage refusal of chemical testing.
Granted that page has a bias, but it's got some good points too. Please do read it yourself and make up your own mind. These kinds of things are hard to fight as if you do you get labeled as "supporting drunk driving and the killing of innocents". It's hard to have a sensible debate on the merits of a law when that happens.
Also I really do
I hate to see a DWI defendant get off the hook based on what is really a technicality but I think that there is a point here. Why should a criminal defendat "trust" the manufacturer of a device used against him?
The manufacturer sells to police departments and the like, they have an incentive to skew their product's test results in the direction of law enforcement. The defendant obviously has a right to know how the machine works. He has the right for his own expert witnesses to evaluate the product and determine if there are any flaws or bugs in the hardware or the software.
Unfortunately, I'd imagine that all of this would apply to almost any forensic test. Using this exact same process, a murder defendant could ask for the source code and engineering documents for a machine used to perform DNA analysis. If the company is unwilling to release, a murder defendant could walk away a free man.
All of this could make prosicution problematic for even the most serious of crimes.
There was a story run in Car and Driver about a lawyer who tried to negotiate a fine for a speeding ticket on behave of a friend of his. Upon learning that New Jersey doesn't negotiate, he got pissed and decided to teach NJ a lesson. He brought out all the big guns....
http://www.imprezars.com/techtalk.htm
Basically, when it comes to scientific evidence there are three things that must happen for it to get into court.
1) it must be proven technology. Horoscopes aren't going to cut it. Peer reviewed is typical standard.
2) the device in question must be built to this technology and be in good working order. Most Judges allow the state to show 'calibration' records and proof.
3) it must have been operated by a competent person. That would be the cop with x years of traing etc.
What is interesting about LIDAR is that it only "measures" time. Based on the time measurement, coorelation of multiple measurements, etc it "_calculates_" distance and ultimately speed.
So this lawyer wanted to see the calculations, equations etc. LIDAR company refused, ticket thrown out _and_ for some period LIDAR was not allowed as evidence in NJ speeding ticket cases (or I guess anyother case).
I assume NJ has since fixed this "problem"
TODO: create/find/steal funny sig.
That's a rediculous analogy.
A microphone does not falsify or validify anything directly. It simply picks up multiple states of data - hard data - to later be analyzed by detectives.
Besides, the functionality and technical information on how microphones (and "spy microphones") work is general public knowledge. You can find out how construct your own long-distance spy microphone online from an inexpesive (several hundred dollars) industrial boom mike (such as those used in radio, television, and movies).
Unlike the alcohol detection devices, it is very difficult to falsify or misrepresent what is being said without it being either obvious or observeably tampered with. This isn't the case with alcohol detection devices, as they simply give a BAC readout and not an individual chemical composition breakdown (as they should).
Were the technical specifications of these alcohol detection devices available to the public (as is the case with things like recorders and microphones), it would be another matter. But they're not. IIRC, the police specify what recording equipment was employed during the trial of cases, though I might be mistaken. They use trajectory and ballistic information on firearms when they are involved in a case; why not do the equivilant for a device which has similar impedement possibilities for the freedoms of a citizen?
~/ssh slashdot.org ssh: connect to host slashdot.org port 22: too many beers
"Other than that I'd say you're blowing smoke. Better hope that the testing equipment doesn't register smoke as EOH fumes or you're gonna see some jail time. Or maybe just some serious probation."
/Chemical Engineer
EOH should be EtOH.
"No-brainer"
Well that pretty much describe government to a 'T' now doesn't it?
Jim
A more in-depth article on this subject is here: http://www.orlandosentinel.com/orl-asecdrunk010601 05jun01,0,3404397,print.story
- 4035.op.pdf
And the court case that that article references can be found here: http://www.5dca.org/Opinions/Opin2004/022304/5D02
I've noticed that they never put those big round "***NEW***" signs on changed speed limits or parking restrictions.
Which is a bugger if you travel a section of road regularly, but infrequently--like every few months. If I know the signage, I'll just watch for traffic or potholes or children or deer or skunks or minivans or raccoons or porcupines or haywagons or moose or bears or all the other road hazards in rural central Ontario.
One place did do it right: they moved the limit farther from the center of "town", which mainly featured a vacation lodge across the highway from the waterfront, so a lower limit made sense. (And blind S-curves getting to it, so you can't go too fast and be able to react to someone crossing the road.) The new loewr-speed-limit-begins signs were Bigger Than Normal and equipped with flashing yellow lights.
And, BTW, at the "MAXIMUM XX BEGINS" signs, you need to already have slowed down. That's not where you start slowing, it's where you stop slowing. (In Ontario, we have "MAXIMUM XX AHEAD" signs where the drop is more than 10 km/h; I notice New York likes "SPEED ZONE AHEAD", but doesn't say what speed is in the zone ahead. And I have no idea what single or double orange diamonds mean on top of a limit sign.)
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?
[offtopic]
Slashdot requires you to wait 2 minutes between each successful posting of a comment to allow everyone a fair chance at posting a comment.
It's been 31 minutes since you last successfully posted a comment
[offtopic]
Simply brilliant.
Although I will agree that being forced to do something is a erosion of rights. No one has a right to drive. It is a privilege. No one forces you to just take a breathalizer test. Even in a case of a false positive you can ask to have your blood taken. They can note the time it is and your blood alcohol level at the time of the bood test and determine what your % was that way to.
I am a huge fan of the open up the source of breathalizer stuff. Every citizen has a right to know how and why it works. In fact no hardware software that can be admisible as evidence should be closed source otherwise how can independent review take place.
If the operation of the breathalyzer has been deemed relevant, can't they just get the court to order company officials to show up and testify?
Forget all this screwing around with the state government and getting information from them...if your device says I am guilty, I have a right to question you in court as to how the device works.
Of course, it doesn't matter, as they are being let off...but that raises the question of why the prosecution isn't subpoening the company officials.
If corporations are people, aren't stockholders guilty of slavery?
I had a justice of the peace threaten me with that fighting one of my tickets. At the time I wasn't as aware of my rights, so I took the plea. However, I then appealed and the conviction was overturned due the the JPs comments, plainly visible in the transcript.
And of course, wasting people's time is a criminal offense. Lock him up and throw away the key! That'll teach him!
which is unfortuneate, since cops are just people, and are prone to having biases, making mistakes, etc.
My opinions are my own, and do not necessarily represent those of my employer.
From the headline: "...if a DUI defendant asks for a key piece of information about how the machine works - its software source code, for instance - and the state cannot provide it, the breath test is rejected..."
It is only saying the test is inadmissable as evidence. So the only people "Skipping Charges" are those who have weak or no other evidence supporting their DUI. Sounds fair to me.
So if the cops are careful to collect enough other evidence, the charges can stick. And this should be standard practice regardless of the legal status of the breathalyzer.
Anm
No one has a right to drive. It is a privilege.
Uh, how do you figure? Driving is a necessity of livlihood in most areas of the US.
Technically we don't have enumerated rights to walking either, but nobody would accept that walking is a "privilege."
If I were a cop or DA I'd be screaming at the salesmen who sold me these machines that will not hold up in court.
Sadly this issue is mostly a failure of understanding. Most people don't understand computers or code or how code runs on a computer or how easy it is for code to be wrong either intentionally or on accident. Few people understand that code can produce inconsistent results or edge case errors. Because of this, most people don't see the importance of open code for voting machines, breathalyzers, government services, etc. The example cited in this article is a very minor one, but important and correct in principal.
If you disagree with me, listen to the following real world example. A friend of mine is working for a company that does creates DNA analysis equipment for hospitals, tracing lineage, research, and law enforcement. He writes software that takes the raw data, and among other things compares two samples to see if they are the same. He was horrified to see the algorithms prescribed for use that include completely statistically insignificant data and which throw out data that is too different from the norm as compared to a wholly arbitrary metric. Think, "well only 2% of the population has that genetic variation it is probably a bad reading we'll just pretend it is whatever the most common sequence is."
The next time you hear about a murder case being solved by a DNA match, think about this. Now think if the police decided you were a DNA match. Do you think your lawyer and an expert you hire should have access to the source code of the computer that matched your DNA to the crime scene evidence?
The problem here, and maybe it's a good thing, is that police departments adapt pretty quickly. I'm sure it is, or will be shortly, standard proceedure to get anyone who fails a brethalyzer test down to the station or a hospital so that a blood sample can be prmoptly taken. I have my doubts about the margin of error on breath testing, but blood samples are as reliable as any defendant or prosecutor could ask for.
bance.net
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).
BEDEVERE: Does wood sink in water?
VILLAGER #1: No, no.
VILLAGER #2: It floats! It floats!
VILLAGER #1: Throw her into the pond!
CROWD: The pond!
BEDEVERE: What also floats in water?
VILLAGER #1: Bread!
VILLAGER #2: Apples!
VILLAGER #3: Very small rocks!
VILLAGER #1: Cider!
VILLAGER #2: Great gravy!
VILLAGER #1: Cherries!
VILLAGER #2: Mud!
VILLAGER #3: Churches -- churches!
VILLAGER #2: Lead -- lead!
ARTHUR: A duck.
CROWD: Oooh.
BEDEVERE: Exactly! So, logically...,
VILLAGER #1: If... she.. weighs the same as a
duck, she's made of wood.
BEDEVERE: And therefore--?
VILLAGER #1: A witch!
If they want to protect their device, than they should get a patent on it. Patents are the best protection for a device you can get, they allow you to tell everyone how your device works, and yet still be the only one who makes money selling it.
If they don't want patent protection, then they obviously do not care that anyone can make the device. So they should have no problem giving away the specifications to the court.
We don't do that around here, as it would tend to decrease profits from ticket-writing.
The test in most jurisdictions is some form of "scientific reliability." If the test is generally accepted as reliable, by a preponderance of the scientific community, the results are admissible. This type of defense has been tried before, but has been rejected in most American jurisdictions. NORMALLY the Court would reject the Defendant's motion to dismiss, but allow Defendant to depose the corporate officials (at Defendant's expense.) The Defendant could then offer expert testimony as to why the Defendant felt the test was not reliable. If the Court continued to believe the test was scientifically reliable, and the issue of intoxication, including the technical evidence would be submitted as a question of fact for the jury. I can understand the corporation's reluctance. I suspect if a good technie knew all the details of the radar gun, it might be possible to craft a device to indicate 43 mph on the radar gun when the true speed was something approaching Warp Factor. The corporation might be compelled to testify, however the corporation could apply for a "protective order" prohibiting the use of the information beyond the criminal trial at issue. Tj
Hey, we're not in Seminole Co. but we're closer to it than Tampa is, for God's sake! Anyway, here it is.
Dear Slashdot: next time you want to mess with the site, add a rich-text editor for comments.
In Massachusetts, however, challenging tickets is widely viewed as a good way to aviod paying, as generally the officer does not show up to court and the ticket is dropped. This is accepted enough that it was taught in my (not too reputable but state approved) driving school class.
This post written under Gentoo-linux with an SCO IP license.
Yes, the certificate indicates it works, but what about error and calibration limits, and more importantly false positives. The current tester does not measure actual alcohol, but the by products of the alcohol. You can actually eat many foods/have a medication that will make the same by products. An early model in Canada would indicate a failure (indicating drunkeness) if you'd smoked a few minutes before taking the test. Would you be happy being convicted for taking a few puffs of a cig before your test and being told it's ok they have that nice certificate?
In the peoples republic of california, we can buy both booze, and beer in the supermarket. There are still specialty liquer stoores, but they sell the more expensive uncommon hard alcohols. License is required to serve alcohol, and a beer and wine licence is different than a hard liquer license.
Some local resteraunts who can't get the license will alow you to bring your own bottle.
I used to have a cool sig, back when I cared
In high school (california), I got a 45 in a 25 and it was a $250 fine.
In Texas 70 in a 50 got me $100
In kentucky 35 in a 25 got me $50
I used to have a cool sig, back when I cared
breathelyzer is not admittable, but it is cause to arrest you and take you for a blood test.
Snowden and Manning are heroes.
Wow!
That's a great argument!
In the same vein: How can privacy be legal? How would anyone know you weren't breaking the law? Maybe drapes should be illegal, you can't tell if someone is doing something illegal in their house if the public isn't allowed to see into everyones homes 24/7. Welcome to Open Living!
Contrary to popular belief, coding is not all free blow-jobs and beer. Those things cost MONEY!
http://science.howstuffworks.com/breathalyzer.htm That's it. Are judges that dumb?
Mike Moore ph33nd@gmail.com
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.
IMO, the details shouldn't be in the public. The general theory or usage should be, but a defendant has no right no know the details
That is horribly wrong. To avoid redundancy, see my answer here.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Again you missed the point. The police officer can give you that ticket EVEN if the box ends up being defective.
What is at stake here is the right to mount a defense [in most cases you can't refuse or deny being given a ticket, but you can fight it in court and get it dismissed].
Citing economic reasons to not disclose how it works is stupid. That's the line of work they were getting into they should have known and worked around that from the start.
This is another "different value" market. The value [to the police] isn't so much in the proprietary DSP algorithms they use [or whatever] but in the assemblage. It's put together and tested to meet some minimal standards so the police don't have to. That's the value.
The fact that it uses publicly available algorithms and designs doesn't take away from the value.
"I realize Slashdot is the land of the tinfoil hats, but stop for a second and realize this isn't a story about police corruption. It's about criminals who were obviously felt to be intoxicated by a trained officer of the law getting away with it because of a sleazy loophole."
Criminals? Says who? You're INNOCENT until PROVEN guilty. And that loophole is the american justice system.
Suppose you just finished your PhD, you got a nice job in the government and part of that was a mandatory drug test. So you pee into the cup, admire it's bounty and pass it off. In the lab they accidently cross-contaminate your urine sample with that of an inmate in a local prison. Now they bring it back and it turns out your a drug addict. Well kiss your government job goodbye. You now also have a drug offense on your permanent record.
Oh, but you should [by your logic] have no right to question in which manner your "presumed guilt" was determined. So now you vested 150k into an education that will basically make you the most intelligent burger flipper in the world.
Congradulations, civil rights are just a "sleezy loophole".
Tom
Someday, I'll have a real sig.
Driving is *NOT* a right. You have to prove your ability to handle the 1+ ton mass of metal at speed before you're allowed to do so unsupervised in public.
Your bogus argument is the reason that our nation's testing practices are a joke and a direct cause of our higher accident rates than the rest of the world...
And I have no idea what single or double orange diamonds mean on top of a limit sign.
It means "***NEW***".
Thankfully, the law does not determine your rights. Rights exist above the law, and are sometimes supported by the law.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
Bullshit. That you can't solve the problem of an obviously-drunk person refusing to submit to chemical testing (hint: Cops have eyes, noses. If you're that obviously drunk, they'll have enough to make probable cause on an arrest) doesn't mean that you can remove a person's Constitutionally protected rights (read that little thing called the 5th Amendment some time).
So to extend your argument to its natural conclusion, people who don't commit crimes don't have to worry about being accused of crimes. Would but this were true. Even in America, wrongful and incorrect convictions occur daily. One of the core philosophies behind the criminal law in the US Constitution is that it is better to let 1000 guilty men go free than to jail one innocent man.
And if you don't believe in that, well... move to Russia or something.
"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."
The software used to run an off-the-shelf digital video recorder is not "clearly documented everywhere" in most cases. Why is this any different from the breathalizer? If I submit evidence recorded of someone vandalizing my car, for instance, with a digital video recorder, is the defendant going to get the casde thrown out because the manufacturer refuses to release the code?
Vote for Pedro
Is the software making a determination about who is stealing your car? All it did was record the situation so that you could view it later. It is still up to someone (who is challengable in court) to make the determination about who is in the video.
Now, things might be different if you had software that took an unclear picture and magically cleaned it up. The defendent might have grounds to request the software to see if it might have artifically added/removed particular identifying marks.
A BAC machine used in the field doesn't save the breath taken for later analysis by standard methods. A particular algorithm or method is applied and the defendent has every right to know which method of calculating the BAC has been used. The same way he has every right to know who figured out it was him on the video and how they came up with that conclusion.
No one forces you to live 40 minutes from your job. Get a house in the city. Walk.
I pledge allegiance to the Flag of the United States of America, and to the Republic, for which it stands: one nation, under God, indivisible, with liberty, and justice for 97% of its citizens.
In NY, it's interesting. If you have a standard 55 MPH highway zone, and are going into a town:
If the first sign is a 30 MPH limit sign, you have until the NEXT 30 MPH sign to slow down to that speed before you can be ticketed.
However, if they first have a generic SPEED ZONE AHEAD sign, you have to be to speed by the first 30 MPH limit sign. I think the SPEED ZONE AHEAD signs are so they can write more tickets.
I usually plan for the speed zone to be 30 MPH if I'm going into a town/city which is often indicated well in advance, and 45 MPH if not.
This seems to work for NY.
OTOH, I've gone past a cop on a back streen in a small town at 43 in a 30 and not been pulled over.
Opera, Proxomitron-Grypen,GPG 0x0A1C6EE3
judges legislating from the bench
Ah yes, that lovely code phrase that acually means:
"I don't know what the law actually says and I don't know what the Constitution actually says, and I don't know or care how and why the judges ruled the way they did, I simply dislike the result".
As someone else already excellently explained, defendants have a statutory and constitutional right to cross examine their accusers and to examine the basis and validity of any evidence used against them in court, else the evidence or testimony is generally inadmissable.
In many other supposedly "legislating from the bench" examples it is merely the judge enforcing Constitutional law. Striking down an invalid Federal or State law *is* enforcing the law. Constitutional law is the first level law, and lower laws violating Constitutional law are themselves illegal.
Now you may certainly dissagree with the legal basis of a ruling, and you might... might... be able to find an error in the logic and basis of such ruling. However it is not 'legislating from the bench', it is a honestly judge attempting to do his job and honestly attempting to enforce the law. If you think a judge made an error, fine... look at the actual case and look at and understand the actual basis he gave for his ruling, and then point out the specific error if you can find one.
However most people do not want to bother with the complexities of law, and particularly the complexities of valid vs invalid law. Most people are more concerned with getting the outcome they would like to get and to hell with worrying about any legally valid basis for reaching that result. Not merely an "ends justify the means" approach, but an "ends, don't bore me with the means" approach. It's much easier to stir people up about unpopular results than to actually think about and understand the law and how those results are reached.
For example the Massachusetts gay marriage ruling is probably the most often cited case for 'legislating from the bench'. However there was in fact *a* legal basis for the ruling. The judges were honestly *attempting* to uphold Constitutional law. Now if you're actually up for it I welcome you to challenge the legal and logical basis for that ruling. They struck down state law saying it was illegal and invalid law. If you want to say they were wrong then I invite you to explain why the judges were mistaken in thinking the state law was illegal and invalid. Not merely 'why the result was bad', but 'why the logic reaching that result was invalid'.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
I was in the Navy in the '80s. We occasionally got tested for drugs via urinalysis. We had a guy (can't remember his name) who tested positive. He swore up and down that he had never done drugs. Had numerous people testify in his defense. His parents called congresspeople. All to no avail. He was convicted, reduced in ranks, de-nuked (we were nuclear power plant operators) and sent to some janitorial-like job somewhere else.
A year or two later, the technician who had done all the urinalysis at the lab testified (in some other case) that most of the time he didn't bother to do any tests. He just picked some samples at random, marked them positive, marked the rest negative. (This was the late '80s, so he wasn't surfing porn. I don't know if it came out what he was actually doing when he was supposed to be working.)
Anyway, they re-instated my buddy's rank, had to give him all his back pay. There were a bunch of people they had to do that to, I bet. He spent the rest of his enlistment just quietly doing his job. Of course, he didn't re-enlist. He was vindicated, but he still had his life screwed with, big time.
Having the process not be transparent is a bad thing. There's all kinds of chains-of-evidence documentation that the civilian justice system has to go through because of shit-bags like that technician. Having some magical 'black box' that can tell whether you're drunk or not... it seems like there should be some way to make sure the machine works. If they can't prove it in court, doesn't it seem obvious that they have no case against you?
BS
Rights are a human invention, and what "fundamental rights" you *think* you have or should have or should not have are a direct result of the culture in which you were raised.
As another intelligent poster put it - The only right you are born with is the right to die.
Ok, so you believe that when slavery is the law, the right to freedom ends? I suspect not, and that you are trolling AC, but perhaps you do. However, your own argument undermines itself: the law has defined a right which is not enforced. Do you have the right? If so, laws != rights. If not, laws != rights.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
If I were a district attorney in such a case, I would ask the judge to order the source code released under seal to the defense lawyers and the defense expert witnesses.
More technically, I'd order the District Attorney to either get the source code or cease and desist prosecuting any cases using that particular breathalizer. Once judges around the country start doing that, police departments will stop doing businesses with breathalizer vendors that are less than cooperative.
What would such an environment mean for those of us that would love to get our hands on the source code? Barring someone violating a court seal, nothing.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Humorously enough, it seems more than half the country would disagree with you, you don't have the right to die, and they're working to enact legislation to stop you!
More seriously, perhaps you're right: perhaps we cannot think beyond the boundaries of the cultures in which we were raised. That would explain why nothing new has ever been thought of.
On the other hand, if it were possible to think beyond the confines of our cultures, then perhaps rights can exist, and we are merely attempting to discover them. That would explain the bill of rights in the U.S. constitution, and why it varies from the Universal Declaration of Human Rights.
My favorite argument in favor of fundamental rights is that they are the rights necessary to have an argument about fundamental rights. That at least gets you to a right to freedom, and a right to free speech of some sort, and you can derive a number of other necessary rights, it's an interesting process.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
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
Shit, are you kidding? That's far too overwhelming a task for the people in the fucking legislatures, much less anyone who has another job.
Just trying to open someone's head! I mean "mind!" Open someone's mind, um, to the possibilities! With explosives!
There is a VERY BIG DIFFERENCE between having your license revoked, and being guilty of a crime. If they want to revoke your license for not submitting to the test... well that's grey area perhaps, but if they pass a law saying if you refuse the test you are automatically guilty of a DUI that is bullshit. That is a crime. It goes on your criminal record. You know.. the one that employers and lendors sometimes like to look at? No trial, no jury, nothing... just guilty.
Here in NJ, it's slightly different, IIRC. You do agree to take a breathalyzer test when you sign your license. However, if you refuse, you are not charged with DUI. You are charged with refusing to take the test, which carries penalties equal to or stiffer than DUI.
However this doesn't change the fact that you're basically signing away your 5th amendment rights.
http://www.canlii.org/ca/sta/c-46/sec254.html
You're correct. It's called Failure or refusal to provide a sample. On the next page, it is lumped together with all the other charges as far as sentancing goes.
i dont understand the delineations between jury and non jury trials. You have to be accused of something pretty awful to get a jury trial for something you did in a car.
I dont know of anyone that's had a jury trial when protesting a moving violation. They're not even misdemeanor offenses.. i think they're referred to as "infractions" or something like that..
My opinions are my own, and do not necessarily represent those of my employer.
Randomly release 3% of defendants?
A logic puzzle for you.
- You are a judge.
- You have 100 cases for DUI to try today.
- In all cases the defendant was found to be over the legal limit by use of a breathalizer.
- You know that 3% of breathalizer results are incorrect.
How do you fulfil your obligations of fairness and justice in these cases?Read more of this story at Slashdot.Read more of this story at Slashdot.Read more of this story at Slashdot.
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.
Are you really so dense that you can't devise a solution to this problem? Let's see, how about this: The drunk person refuses to submit any evidence (blood/breath/urine). The cop can tell he's obviously drunk, but doesn't have enough evidence to make a case. So, he puts the guy in lock-up for the night (called the "drunk tank" for a reason), and lets him out in the morning when he's sober. Nothing wrong with that scenario. There's nothing saying you can't be held, only that you can't be held indefinitely without being arrested and arraigned.
Not harsh enough for you? Okay, how about this: The drunk refuses to give any evidence, and so the cop slaps him with a charge of obstructing justice. Maybe it's not as harsh as a DUI, but it does carry fines and a possible jail sentence. The cop then puts him in the drunk tank for the night, releases him on personal recognizance in the morning with a court date, and they prosecute the obstruction of justice charge.
Don't walk in the street and you won't get run over. Seriously, though, re-read what I said. I made no claims that anyone has a constitutional right to drive drunk (or to drive at all). What I said (and what you'd have gathered if you understood the 5th Amendment) is that you can't be forced to testify against yourself. Giving evidence from your own body (blood/breath/urine) could be considered as testifying against yourself. That's why you're read your Miranda rights (no, Miranda isn't some girl -- it's a guy who was not informed that he had the right not to talk, and thus was coerced into testifying against himself; right or wrong, whether he did it or not, a constitutional right was violated and it made its way to the supreme court of the land). You know, "You have the right to remain silent", et al?
Your right to personal safety (which, btw, is not guaranteed anywhere in the constitution -- the constitution protects against unlawful search and seizure, but that's it) does not trump my personal property rights (illegal search and seizure, 4th amendment; one could argue that coercing a suspect to give breath/blood/urine is an illegal seizure of his personal property) or my legal rights (5th amendment, my right not to bear witness against myself; 8th amendment, no excessive fines shall be imposed nor cruel and unusual punishments inflicted).
He wasn't saying its right for a court to declare a smartass guilty, just that it happens.
Also, even when they are being above board and considering the evidence, many cases come down to credibility of the witnesses. Someone being a smartass isn't going to appear as credible as someone taking the proceedings seriously. Think about it, you have two witnesses, each telling you contradictory stories, which would you believe? The composed, polite, well behaved individual, or the one making smartass remarks about the evidence? Assume that both stories have equally strong objective evidence, and that deciding the truth comes down strictly to credibility of the witnesses.
however there is NO reason why you should refuse to take the breathalyzer test in the first place.
Are you absolutely sure? What if I don't believe the brethalyser is accurate? What if I don't believe the yokle knows how to operate it properly? Perhaps it shows visible signs of severe abuse and/or tampering.
Given that many people who aren't knowledgable enough to see "the man behind the curtain" and so place way too much faith in things like brethalysers, if I have any reason to doubt the machine's accuracy, I might very well prefer not to have it's faulty reading presented in court even if I know I am sober.
In those cases, I might prefer to refuse the brethalyser and submit to a blood test (performed by a properly trained medical technician) instead. That brings less interested third parties into the picture, and opens the door to me getting a second analysis on the same blood sample in the event that the tech screws up (or for the more paranoid, is conspiring with the yokle). A law that declares that refusal of the breathalyser==DUI is simply unacceptable.
A big problem with the breathalyser is that it produces 'evidence' that cannot be properly verified. Breathalysers also violate the chain of evidence. By the time a trial comes up, who knows for sure what abuses (or repairs) the breathalyser has been through?
You still have a choice before you decide to drive. If you don't want to be forced to submit to a test then don't drive. Your logic is flawed. From your same argument I would assume you think it is wrong to force airline pilots to take random tests for drug and alcohol use. The basic idea is when you are in a position to cause harm to others that can result in death you lose some of your autonomy of decision. When you get behind the wheel of a car you are making a social promise that you can stay in control of your vehicle and not harm others. If you don't wish to accept that you don't have to drive. Move to a city and take mass transit.
I'd be interested in how they sync these with the "atomic clock". Is it the same radio signals that my bedside alarm clock claims to use? Because somehow that manages to run 8 minutes fast, even though it claims to have a lock on the radio signal. I suspect those radio sync chips only correct the seconds, so if your clock/the camera's clock is more than 30 seconds out to start with, it isn't corrected to the right time.
Really? If these rights are so pwerful, how come it's so easy to violate them and take them away with nothing more than a punch to the face. Rights only come from the strength to enforce them. You have rights because you pay strong people or groups to protect them.
What?
Rights aren't powerful at all, just fundamental. Rights violations go on all the time, but that's just what they are: violations. Law enforcement is designed to prevent as many rights violations as possible, precisely because rights are widely accepted to be important and worthy of protection, but fragile and easily violated.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
The laws of physics are fundamental because it's impossible to violate them. That doesn't work with rights. Fundamental things are just that. They are imppossible to remove. The rights that we speak of are a human invention. A better word for us to use is liberty. Liberty can be taken away. A right implies inviolability(?), but they're violated all the time...by the same people who invented the concept!
What?
Pretty scary that you can go to jail just for refusing to take a breathalyzer/other test, even if you WIN the DUI case (in other words you weren't drunk in the first place). Looks like the _minimum_ penalty is to lose your license for one year (again even if you win the DUI case).
This is part of a sadly growing trend to sacrifice justice for expediancy through sophistry.
File it along with prosecutors who inflate jaywalking to murder 1 so the defendant will be greatful to plead guilty to disorderly conduct, "detectives" who think a positive match on some test (any test) automatically means guilty, a civil court system where winning is more expensive than settling and a big pile of other issues.
... but then he might have to live near ... POOR people!
That's exactly what makes some rights fundamental: they cannot be removed, they exist independently of the laws which enforce them, or whether or not you are in fact able to exercise them.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
Another thing that makes a thing fundamental is universal recognition. It is universally recognized that the sky is blue the grass is green(if it's not dead). A rock will fall if you drop it. These things are as fundamental as it gets. There is no law that can change that. Our nukes aren't that powerful. Rights are subject to human opinion and whimsy. The fact that there is so much disagreement over what rights we have shows that they're not fundamental in any way. On the other hand we do have the fundamental right to do what ever we want, simply beacuse we might be capable of it. So, in that case, which rights do we give up to live comfortably in society? Who decides which rights we must give up? Personally, I give up some rights out of respect for the other person. I don't get upset until somebody tries to arbitrarily prohibit my actions. Proving the existance of rights is a little like trying to prove the existance of god. Also, can you give me an example of what rights we have despite what the law says? Are they absolute? If not, who decides what limits there are? If you accept some limits, and somebody else wants stronger limits, when are you going to decide that your rights are being violated?
What?
Proving the existence of rights is much easier than proving the existance of god, because it is much easier to make the necessary foundation. See one of my other posts regarding a constructionist viewpoint for the necessity of rights necessary to make arguing about rights possible. If there are no rights, then your arguing with me is meaningless and pointless. On the other hand, if there are rights, then my arguing with you might convince you.
To me, the most obvious right in contradiction of law is the right to freedom. Slaves everywhere have a right to be free, but in many cases, and not so long ago in the US, the law did not support that right.
If we give up the exercise of rights to participate in society in a specific way, that's all we do. We don't surrender rights, merely the choice to exercise them. Remember, rights cannot be taken away or given up, but you can of course choose not to exercise them, and you may be prevented from exercising them, but that is not the same as saying they do not exist.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
Slaves everywhere have a right to be free...
Please, don't take this wrongly...but, free from/of/to do what? I know the is a silly question, but just how free is a person allowed to be? My personal answer is anything that doesn't cause harm to another. For me it's a nice absolute to work with. I suppose if this right was respected universally, everything would fall into place. I like the idea of rights, but we need a way to make them as inviolable as the laws of physics themselves to make it really mean anything. That would make me a lot more comfortable than a bunch of fancy, expensive philosophy.
What?
Free from threat and use of physical violence used to force them to do work for others. I completely agree with your next statement (anything that doesn't cause harm to others), and I think you'll find that that builds up a certain set of rights which would be great for us all to respect universally, and indeed, much of the world would be more pleasant if such a right were universally respected. I think law and law enforcement is essentially our collective effort to translate the fragile absolute rights into practical exercisable rights.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
Down here DUI is an offense punishable with 2 years of hard jail. How would you feel if your brother was jailed for two years for driving after taking half a can of beer and driving?
It's better to be the foot on the boot than the face on the pavement. ~~ tkx Kadin2048
I see you have good intentions, but you are not thinking straight.
Suppose your brother took half a beer, and was in perfect conditions to drive. The breathalizer gave him 0.18. Bam! He goes to jail. His lawyer says: I want the State to prove that the breathalizer test is conclusive. The state says: I can't prove it. Your brother goes free.
Now suppose your brother took two gallons of beer. The rest of the story does not change, because the state do not have any other way to prove he was not in conditions to drive. Now, morally, your brother could confess or otherwise waive his right to a defense, but it's *his* moral problem.
When society interferes with the defense rights of people, you know what happens? A lot more innocent people end up in jail, and *not* a lot more guilty people end up in jail. And *that* is why the innocent-until-proven-guilty (beyond reasonable doubt) principle is so important.
It's better to be the foot on the boot than the face on the pavement. ~~ tkx Kadin2048
They are leaving Virginia at the end of the month, however! Good riddance!
"Avoid employing unlucky people - throw half of the pile of CVs in the bin without reading them." -- David Brent
DC law says the registered owner of the vehicle is responsible for red light cam and speeding cam violations. The owner can say he wasn't driving the car at the time, but he will be compelled to divulge who was actually driving.
"Avoid employing unlucky people - throw half of the pile of CVs in the bin without reading them." -- David Brent
In some jurisdictions, if you start filing discovery it's a good way to get the charges dropped. It's a revenue drain for them to comply with all the discovery and it's easier for them to extract money from folks who just pay up.
"Avoid employing unlucky people - throw half of the pile of CVs in the bin without reading them." -- David Brent
But brethalyzers are worthless for a number of reasons. If you ever get pulled over for DUI, insist on a blood test.
"Avoid employing unlucky people - throw half of the pile of CVs in the bin without reading them." -- David Brent
"Avoid employing unlucky people - throw half of the pile of CVs in the bin without reading them." -- David Brent
Can't believe you got a ticket for 60 in a 55 in VA, though. That really sucks. I've heard the cops are a pain in the ass here in VA, and I don't doubt it given the number I see on the roads every day. I prolly saw 6 or 7 on the way to work this morning. :-\
"Avoid employing unlucky people - throw half of the pile of CVs in the bin without reading them." -- David Brent
I know, I know. Not scientific. But also not beyond the realm of possibility.
"Avoid employing unlucky people - throw half of the pile of CVs in the bin without reading them." -- David Brent