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:-)

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: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: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