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DUI Defendant Wins Source Code to Breathalyzer
MyrddinBach writes "CNet's Police Blotter column looks into a Minnesota drunk driving defendant case with a twist. The defendant says he needs the source code to the Intoxilyzer 5000EN to fight the charges in court. Apparently the company has agreed to turn over the code to the defense. 'A judge granted the defendant's request, but Michael Campion, Minnesota's commissioner in charge of public safety, opposed it. Minnesota quickly asked an appeals court to intervene, which it declined to do. Then the state appealed a second time. What became central to the dispute was whether the source code was owned by the state or CMI, the maker of the Intoxilyzer.'"
Before you hang the guy, perhaps we should consider he may be on a low-carbohydrate diet and the unit fails to distinguish acetone from alcohol.
Just four months ago a Virgin Atlantic pilot was arrested and taken off the aircraft he was the pilot of for a flight from Heathrow to JFK. Several days later, all charges were dropped when the results of the blood tests proved him innocent.
Pilot arrested on drink charge
Diet clears drinking-arrest pilot
I've said it before tho...and this does differ in many states, but, if I got pulled over, and knew I'd blow more than the ridiculously low 0.08, I'd do what a lawyer told me. Not say a word, not take any field tests, just hold my hands out for the cuffs and refuse to take any tests. All those field tests do is allow them to collect evidence on you on camera. With no evidence...they can't prove you were intoxicated. In many places, yes, you'll lose your license for a year...you'll probably get hit with wreckless driving....but, you won't get a DWI on your record which can nowdays hurt you on job applications, credit...and certainly your insurance.
If you're drunk...you are going to jail...but, you don't need to help them collect evidence against you.
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
I work as a law clerk for a judge in Minnesota, and have written opinions regarding this very matter. Luckily, my judge agrees with me that people's liberty's should not be dependent on the financial interests of private businesses, and we have forced the state to disclose the source code when we get the motions. Of course, the state has not yet done so. As the Asst. Attorney General said in court just a couple days ago, "CMI simply will not give the source code to us. We're supposed to own it, but they just won't give it to us. I'm not sure what to do at this point."
This will probably lead to hundreds of implied consent motions being decided in favor of the driver (which means he gets his license back, and doesn't relate to the criminal charges) and it remains to be seen how courts will hold in criminal matters, but I'm guessing many of them will follow the Underdahl court in forcing the state to disclose it.
As I've explained to my judge: essentially, states needs to learn that it is a very bad idea to sign contracts to acquire closed source devices to which they will have no access or ability to test. The same goes for voting machines.
Personally, I'm VERY conservative when it comes to DUI cases, and I very, very rarely side with the driver. But in this case, I've decided it's worth it to throw out a few of them if it means fixing "the system", not just for the intoxilyzer code, but for more important things like the voting machines.
On another note, I'll be writing a more thorough order requiring the use of the source code, and as one of the few law clerks around that has a CS degree, it'll get used by plenty of other judges. So if anyone has any suggestions on good, succinct public-policy based rationale, I would certainly like to read them.
My mom was a juror for a drunk driving case. The defendant (who had only came into town that day) met someone who invited him to a party. He went, and after he drank some alcohol, the others there assaulted him. He went outside, but they followed him.
Being in immediate physical danger, and there not being anyone sober around who wasn't threatening him, he had no choice but to drive.
Was he foolish? Yes. Criminally so? No. He could not have anticipated the urgent need to drive by himself, and the risk of causing death or injury by driving wasn't nearly as high as the risk would have been if he had stayed and let them pummel him.
BTW, I've never drunk alcohol and never will, so don't write me off as someone carelessly excusing his own foolish hobbies.
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