Closed Source -> Charges Dismissed?

Snorpus writes "According to the Tampa Tribune, judges in the central Florida county of Seminole are dismissing DUI charges when the defendant asks for information on how the breath test works. Apparently the manufacture of the device is unwilling to release the code to the state, and all four judges in the county have been dismissing DUI cases when the state cannot provide the requested information. Could this apply to other situations where technical means (radar guns, video surveillance, wire-tapping, etc.) are used to gather evidence? " I'd not plan on this as a legal defense, but the question it raises - of public access to information - is an important one.

Comments

Voting machines?

[Anonymous Brave Guy]

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

Pulic Right to how it works

[redstar427]

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

Re:Pulic Right to how it works

[jedidiah]

You've got that BACKWARDS.

A DUI prosecution should not succeed based on a "technicality". The consequences of such an action if successful are far more grave and thus are deserving of a much higher standard of car on the part of law enforcement.

If attorneys can successfully bring up the issue of false negatives then THAT is the real problem & not some drunk meeting the burden for reasonable doubt because cops think they can be sloppy.

Also, reasonable doubt is NOT a technicality.

Re:Pulic Right to how it works

[DarkSarin]

I think you missed the point: how do you know they were really drunk if not for the technicalities? If you have the suspect blow in the breathalizer, and then believe they were drunk, you should then be required to get further proof if you want to inflict any permanent punishment (blood sample). This would mean taking the person down to the station--something an officer should always do if the person is drunk.

That would change the nature of the tickets from a minor annoyance to a serious situation, for both the officer and the suspect.

In many states (CA is the only one I know for certain) you have the right to demand the calibration records of any radar gun used in issuing a speeding ticket to you. If the gun has not been calibrated properly within 24 hours of issuing the ticket, then the charges must be dropped.

The sad part of this is that you must ask. If you don't ask, you still have to pay the ticket.

I think this is a good thing: it keeps the police honest. I think Freedom of Information is a good concept: the public watches the police. That's what the US is founded on--that government is to be held responsible for its actions by those who are governed. This means that government is not the highest power--the citizens are.

I don't think that we are necessarily adhering to that concept, and I certainly feel like there is too much government secrecy. Sometimes the idea of "secret for the good of the state" frightens me more than anything else. State secrets are handled as a fact of life, but this isn't necessarily good. No, I don't want criminals and terrorists to have access to the information required to build a nuclear weapon, but neither do I think that most senate meetings contain that sort of information.

I have more thoughts, but it is Monday morning, and I have work (!) to get done.

Sounds like a huge open-source business opportunit

[isotpist]

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:-)

Red light cameras

[swb]

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

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

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

Re:Red light cameras

[tdemark]

It sounds like you are under the impression that a red-light camera just takes a single shot of the car.

When tripped, a camera actually takes two pictures; somewhat wide-angle shots that show the position of the car, the state of the intersection, and the state of the traffic signal.

The first shot will show your car behind the stop line (not in the intersection) and a red signal. The second will show your car in the intersection with the light still red. The photos are timestamped.

This way, they can prove in court that the car in the photo actually ran the red light at the time specified (the subject of the article above notwithstanding).

- Tony

Re:Red light cameras

[enbody]

The key issue with red-light cameras is who controls the length of the yellow light being on. If you shorten the yellow light, you can increase violations and hence increase revenue. In many cases, the contract has the private camera company controling the yellow light timing. Revenue rather than safety becomes the deciding factor, and it is outside public control. I have read, but cannot verify, that cameras plus very short yellow lights increases rear-end crashes as people slam on brakes to avoid tickets. If red-light cameras are coming in your community, consider advocating that your community control the yellow-light timing. If the community controls the yellow-light timing, community pressure has a chance to influence the safety vs. revenue debate.

Re:easy solution

[_Shorty-dammit]

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...

Re:easy solution

[oniony]

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

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

Best not put too much vinegar on your chips tonight.

Re:Wouldn't it be nicer....

[tomstdenis]

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

Re:Weak

[Lifewish]

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?

If the scanning system is dodgy then YES HE BLOODY WELL SHOULD! How would you feel if falsely convicted for rape due to dodgy evidence?

Equally, given that traffic-related charges are a major source of income for police depts (certainly in Britain), how do we know the police didn't go for the breathalyser model that always flags each 20th suspect as being drunk? Sorry Granny, they caught you fair and square.

Without access to the system internals (in this case the source code) we just don't know. However unlikely tampering may seem, that uncertainty will still be there.

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

[WindBourne]

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

Re:Weak

[Anonymous Brave Guy]

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.

Technical evidence is being submitted without information about how it was gathered, leaving no way for a court to assess its reliability? I'd say that should be a pretty strong defence, actually, probably enough to instruct a jury to disregard that evidence entirely.

This is not a wedge issue that should be used to push open source.

Indeed, the title is deeply misleading. A court requiring evidence about how software works is not the same as requiring the software to be Open Source, nor anything close to it.

Experienced something similar with UK speed camera

[pandrijeczko]

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

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

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

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

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

Re:easy solution

[Wordsmith]

"Why does the defendant have a right to know how equipment used to obtain evidence works?"

Because a defendant, who may or may not be guilty, has a right to rebut and discredit the evidence - if the state or the company to which it contracts its breathalizers won't reveal that, the defendant is robbed of that right.

How do we know the third party is really impartial, thorough or accurate? The defendant gets a shot at evaluating the evidence too.

Re:which is worse, the drunks or the judges?

[keraneuology]

This sounds more like a worst case scenario of judges legislating from the bench.

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.

If the state does not have a requirement of disclosure then by what basis do the judges operate?

Refer back to that word statutory - it appears that the state does have a requirement of disclosure.

How can they not apply this to speeding tickets, parking meters, or are items of revenue enhancement strictly excluded from this test?

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?

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.

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.

Re:Sounds like a huge open-source business opportu

[mwvdlee]

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

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

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

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

Re:Weak

[p3d0]

This should be filed under 'ignorance of the law, and by extension ignorance of the tools used in law enforcement, is no excuse'.

Absolutely wrong. The corollary to "ignorance of the law is no excuse" is that citizens have the responsibility to educate themselves about the law. For the state to make that impossible, and then require citizens to do it anyway, is truly Orwellian.

Re:Public Right to how it works

[Ann Elk]

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

Imagine this scenario:

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

Background for non-US residents: In most places I have been in the US, the legal maximum blood alcohol content is around 0.08%. Most people (those with normal metabolism, etc) can easily drink one glass of wine and remain far below this limit.

When you take this test, don't you really want to know how the machine works? A false positive could have a huge impact on the rest of your life.

Voting machine philosophy explianed.

[goombah99]

Why is everybody so convinced that electronic voting machines don't work? My town has had electronic voting machines for a decade with no problems.

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

Re:OTOH

[Shakrai]

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

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

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

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