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Judge Rules Defense Can Get DUI Machine Source Code
pfleming alerts us to developments in Arizona on a subject we have frequently discussed (e.g. FL, MN, NJ): efforts in DUI cases to obtain source code to devices that analyze blood alcohol levels. On Friday a Pima County Superior Court judge ruled that the software that powers the Intoxilyzer 8000 must be revealed to defense lawyers. "Defense attorneys representing more than 20 people arrested on felony DUI charges agreed to consolidate their cases into one and to argue it before [Judge] Bernini ... The source codes are crucial because the Intoxilyzer 8000 sometimes gives 'weird' or inexplicable results ... Six other states have been battling CMI [maker of the Intoxilyzer] over the source code — Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey... CMI has currently racked up over $1.2 million in fines in a civil contempt order for not disclosing the source code in Florida."
I'm sorry, but if a company is making it impossible for DUI prosecutions to be done fairly, the company officers should be sitting in jail whilst we wait to find out if they can get the source code together or not.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
I work as a law clerk in Minnesota, and while (being a clerk and all) I haven't "ordered" per se the source code be turned over, I've written many orders doing so -- until the Minnesota Supreme Court created a very high hurdle to getting it and no one has since requested. As stated by the attorney in the article, CMI won't turn the code over. Period. They simply will not obey court orders to do so. Minnesota is currently suing CMI in federal court, and we'll see how that turns out. But barring a federal court order, I assume they will simply continue to refuse to turn the code over. The result? Hundreds of DUIs being thrown out in Minnesota alone. Nice to see that the company cares more about their IP than the safety of our roads.
Then there needs to be a way to prove that the source code provided matches the binary code being executed. But if they can't provide the source code, then there's no reason at all to believe that it's honest.
I think we've pushed this "anyone can grow up to be president" thing too far.
While there may prove to be some problem in the source code that destroys accuracy, it would be far more likely that any error is caused by the actual sensor. The only real error I can see them making in the source code would be averaging multiple readings from the sensor together.
The real way to determine if the Intoxilyzer is accurate is to do repeated lab tests using known concentrations of alcohol in air. This would take both software and hardware into account.
If the witness in my case is a human, do I have a constitutional right to know how the human works?
Please correct me if I got my facts wrong.
Why restrict it to the defense? The police and the justice system ostensibly serve the public; there's no reason the public shouldn't be allowed to see the source code. The code could remain copyrighted; there's no need for it to be free for anyone to use, merely avaiable for anyone to inspect. I see no reason these companies need to keep the code secret as well -- it certainly doesn't serve the public interest.
Convicted of a DWI.
What I found most intellectually troubling is that, in AZ (among toughest DUI laws in the country), the violations schedule awards the most "points" for potential crimes - actions that are crimes because of their potential to cause harm, property damage or death. The next "rung" down on the "ladder" includes crimes that result in harm, property damage or death.
I know I was wrong, and I no longer drink at all. Drunk driving is a serious problem, that should be addressed.
However, the way in which DUIs laws are written, there is little room for a judge's interpretation of circumstances. In AZ, you are LIKELY to be convicted if you have ANY amount of alcohol in your system and take a Breathalyzer test - under "impaired to the slightest degree."
What that conviction would get you typically sentenced to is: 90-day revocation of your driver's license, (30-days complete restriction, 60 allowed of work/school restricted), 30 days incarceration (29 suspended), $500-1500 in fines, 6-10 weeks of alcohol education, 1 year of driving with an ignition interlock (a breathalyzer to start your car), 20 hours of community service, and possibly, 2 years of probation. Your insurance goes up 30-50%.
This is mandatory minimum sentencing, and the judge has little power to affect the outcome except to change a few numbers on the jail term (more), fines, education and probation.
Also, 'probable cause" is not necessary to even make the original traffic stop. The term used now is "reasonable suspicion," and does not require you to commit any other violations: You might be driving just after the bars close at 2am. You might be in an area know for its' nightlife, and happen upon a roadblock - in short, your civil rights are intrinsically limited whenever you get in a car.
BTW- atorneys anecdotally say that the Intoxalyzers' readings often can be off by as much as 20%.
Sorry, in today's world there are two sorts of companies: those with IP and a product and those with a product.
The first sort exist in the US and Europe. The second sort are in China, Singapore, Indonesia, etc. Taiwan and Japan are sort of a mix.
Once you let the IP out, the second sort of company can easily eliminate the first sort from the market. They can make the product cheaper, faster and more efficiently and they have zero R & D costs. Sure, you can use all sorts of things like patents and copyrights to try to lock down the IP. Unfortunately, none of those apply in a Singapore courtroom. And US Customs really, really doesn't care. They will not block importation of materials based on patents, licensing or anything else like that.
That's how things are wired in the USA for 240 volt circuits. The transformer secondary is tapped at the midpoint and grounded at that tap. All 3 wires are supplied to the building. 120 volt circuits can be wired between the midpoint neutral and either of the other wires. 240 volt circuits can be wired between the 2 non-neutral wires. While AC is, of course, alternating polarity in time, at any one instant, one of those wires is positive while the other is negative relative to the neutral. So the voltage difference between them will be 240 volts.
If you insert the two probes into the outlet holes for power, and one of those probes is broken, you can still get a reading that shows the charge potential for just one side. Digital meters pull so little current from the measurement that they actually can read charge potential alone. It could then show as much as 120 volts even for a 240 volt circuit, giving a reading that could appear to make sense since 120 volt circuits are the most common here, while the actual circuit is really 240 volts. A good electrician will cross check his meter to be sure it is not giving a faulty reading.
now we need to go OSS in diesel cars
In NYC the police using their breathalyzers (might be a different model) could trigger an intoxicated reading just by keying their radios nearby. The needle would jump higher and they could use that to lock you away for hours until a much slower blood test refused to confirm the reading. It is well known that they used this "ability" to harass and lock away people who annoyed them with no justification. There are all kinds of "tricks" that can be played with these machines and the defense is right to be very leery of any "evidence" provided by them.
And I know Pima county well enough to know not to rely on what their attorneys say as the final word on anything.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
To add on to the above post, in Florida, portable breath test unit results (breath tests in the field) are not admissible in court. They can be used for certain administrative violations, but not for criminal charges.
In order to be administered a breath, blood, and/or urine test, you must already be under arrest in Florida. The officer has already administered field sobriety exercises and determined that the subject is impaired by drugs and/or alcohol. The tests at booking or elsewhere are after the fact. And as the parent said, you can be arrested even if your BAC is below the per se limit. This is because some people can get completely smashed on a drink or two, some people drive with drugs (legal or illegal) in their system which impair their ability to drive, and some like to mix and match.
I suppose that this really does not have much to do with the device's source code, but I just wanted to point out that in Florida mindless drones are not using this machine alone to determine if someone is drunk. It is a little more complicated than that.
I work in the State of Florida as a police officer, and I arrest and charge people with DUI on a regular basis.
In my opinion, this ruling was exactly on the money, and far too long in coming. If a company refuses to disclose evidence, the State should immediately stop using their product to obtain evidence.
As a certified expert witness, I am able to testify to the impairment of a subject without the need of a breath analysis to verify. About 20-30% of the cases I testify in have no breath results because the defendant refuses to provide a breath sample. We only forcefully obtain samples (of blood, not breath) when a traffic homicide is involved.
If the evidence is faulty, I *need* to know. I can only uphold my oath of office if I can testify in good faith that I am using proper methods of obtaining evidence. If this company is witholding vital information, they should not be allowed to sell their product to law enforcement.
His lawyers defense was that every man had the right to face his accuser, and that included the computers.
Captain Kirk was innocent. The computer records were falsified.
The DUI makers should watch this episode.
A DUI prosecution can be easily proven if the officer has done his job well without needing the breathalyzer test. That said, the test is still done because it provides further evidence of guilt, and in states that provide increased penalties based on the BAC level, can bump up your punishment."
That's why for hypothetical situations...I consulted a lawyer in my state. He basically said, if you're pulled over, and you know you're near or over the limit....say nothing, take no tests, just hold your hands out for the cuffs. You're going to jail that night and you know it. Taking the field tests, and all usually video taped by the cops, does NOTHING for you, except give them evidence against you. He said to basically say nothing, do nothing, take no tests. At the worst...they may suspend your license for refusal to take the tests, but, at least, you don't get a DWI because they can't prove you were intoxicated.
And generally, if this is the case...they will give you a restricted license, to drive to and from work, etc....and in a year, you can get your normal license back.
The trick is...do NOT give them evidence to be used against you. You will be very inconvenienced, but, at least you won't have a DWI on your record which can screw up your life...insurance and otherwise. With the legal BAC being reduced to a ridiculously low .08 these days (thanks o the feds blackmailing the states with tax revenue withholding threats)...most anyone that has some wine with dinner is in jeopardy of being picked up for a DWI....I have no problem in not giving them any help in the matter.
I know laws in states vary, but,
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
The known value is an reference alcohol unit pre-applied prior to each test as a calibration, to establish that the machine is accurate. The unit is equivalent to a reading obtained in medical studies show to prove the average person intoxicated. This calibration is noted on your Breathalyzer card, along with your results (usually 2, spaced an hour apart, with different reference units), which will be noted on the complaint, and included in the arrest report.
Good to know, but still doesn't really address the issue. Here's why.
When my father was still practicing, he had a digital scale that was miscalibrated. Up to about 60 lbs, it would give fairly accurate values (maybe within 1/2 lb), but above that, it became increasingly inaccurate, consistently underweighing. Thus, even if you had weighed two reference weights of 30 and 60 lbs, you would have thought that the scale was properly calibrated.
Secondly, if the unit is designed to show that the average person is intoxicated, how can it be uniformly applied to people of different sexes, different weights, etc.? I suppose they might have several units for this purpose...
In any case, my point still stands - they are trying to determine an unknown value - your BAC. They may be able to measure a known value with the device, but your BAC remains an unknown value. Ideally, there would be another method of measurement which could produce the same results.
Furthermore, as others have pointed out, if you really are intoxicated, it's probably quite obvious, and the case shouldn't rest on the results of the device. If, however, the only evidence available is the results of this device, they'd better make damn sure it's accurate. A great way to do that would be to test it on human subjects whose BAC is known by another test - and TFA specifically says that this particular machine hasn't been tested on human subjects, only on simulations.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
"INAL, but I was convicted of a DWI."
I am a computer programmer, and rest assured that the manner in which the machine handles the calibration test doesn't necessarily indicate how it handles the breath test. Both tests likely have different entry points to the core functions which do the measurements, meaning that there is more than one way for the machine to screw up. There is also no way to be sure that the machine is using the same code to do the measurements. For all we know, the calibration code and the breath test code use completely different paths. Perhaps even a copy/paste/alteration job which introduced (un)detected errors.
Simply put, there is no way to know that the firmware is accurate without verifying its source code. Observing its effects under controlled conditions may simply be exercising a different code path than the device uses in the actual tests. All we have is the manufacturer's assurance, and being stuck with proprietary software will teach you how worthless that is.