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Breathalyzer Source Code Ruling Upheld
dfn_deux writes "In a follow up to a 2005 story where Florida judge Doug Henderson ruled that breathalyzer evidence in more than 100 drunk driving cases would be inadmissible as evidence at trial, the Second District Court of Appeal and Circuit Court has ruled on Tuesday to uphold the 2005 ruling requiring the manufacturer of the Intoxilyzer 5000, Kentucky-based CMI Inc, to release source code for their breathalyzer equipment to be examined by witnesses for the defense of those standing trial with breathalyzer test result being used as evidence against them. '"The defendant's right to a fair trial outweighed the manufacturer's claim of a trade secret," Henderson said Tuesday. In response to the ruling defense attorney, Mark Lipinski, who represents seven defendants challenging the source codes, said the state likely will be forced to reduce charges — or drop the cases entirely.' ... What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret. It means the state has to give full disclosure concerning important and critical aspects of the case."
Maybe this depends what state you are in... In California, you sign a contract to get your drivers license that says they can breathalyze or blood test you for BAC on reasonable suspicion of drunk driving and you waive the right to refuse.
Be aware that in some states (I think NC is one) failure to take the breathalyzer test will loose you your drivers licence. The penalties are the same as for drunk driving. Consult a lawyer in your state or country before taking slashdot advice. Kurt
while this is unquestionably true as a question of fact let me assure you that at least one court of law is more than capable of ignoring it - this exact thing (unpatched windoze box got p0wned) happened to my sister-in-law's brother back in '02 and he's currently on federal holiday in Mississippi (at least it's the "country club"/minimum-security kind) and facing a lifetime of being registered and presumed to be something he clearly isn't...
even if you don't care about the injustice of ruining the life of a (then) 19-yr-old you don't & likely never will know (I'd only met him 2x before that happened) you might want to consider the six-figure sum of you tax dollars that's been shoveled into the furnace prosecuting and imprisoning him but, hey, we got to "think of the children!!!", right?
If you're pulled over and suspected of DUI, then don't take the damn test, beacuse the accuracy of the breathalyzers are questionable. Plain and simple.
Worst. Advice. Ever. Let me qualify that, if you're a first offender, it's the worst advice ever. First off, depending on what state you're pulled over in, the consequences of refusing the test are worse than your first dui arrest. Second, prosecutors are now using the fact that you refused the test against you as proof that you were intoxicated. If you have no had prior DUI arrests, you should almost always take the test. You can always fight it later on, but you'll almost surely loose your license if you refuse.
You'll have that sometimes...
169A.52 Sub 3: Test refusal; license revocation. (a) Upon certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in physical control of a motor vehicle in violation of section 169A.20 (driving while impaired), and that the person refused to submit to a test, the commissioner shall revoke the person's license or permit to drive, or nonresident operating privilege, for a period of one year even if a test was obtained pursuant to this section after the person refused to submit to testing.
Yeah, I've got nothing...
remembering back to Driver's Ed (1979) I think it was said that the human body metabolizes about 1 drink per hour. So if it takes an hour to get a blood sample, a suspect could fail a breath test but pass a blood test just by metabolism. Would a court factor in the time between inital arrest and blood sample collection?
Yes, alcohol is metabolized at a fairly regular rate. Since the time you were pulled over is known, and the time the test was administered is known, when you combine that with the relatively high accuracy/precision of the blood test you can determine what the BAC was at the time the person was driving.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret
No, what it means is that corporations that sell equipment THAT PRODUCE EVIDENCE TO BE USED IN CRIMINAL CASES can't hide behind trade secret laws. It's a very narrow set of circumstances. If the machine isn't used to produce criminal evidence, it isn't affected. Things like radar guns and red light cameras could be affected by this ruling. General consumer products are not.
The breathalyzer is effectively acting as a witness against the defendant in a DUI case. The defendant has a CONSTITUTIONALLY GUARANTEED right to cross-examine witnesses and challenge their credibility and accuracy. In the case of a machine, this can include subjecting the machine's design to scrutiny by a defense expert.
Seems pretty open & shut to me: if they don't disclose the engineering data necessary to validate the accuracy of the machine, then the evidence produced by the machine is inadmissible.
Since DUI is based on specific blood alcohol levels, they would have to drop those charges and settle for something where they could get a conviction based solely on the arresting officer's eyewitness testimony (EG reckless driving or other specific moving violations).
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
As stated less forcefully in other replies, if you refuse a breathalyzer test in Virginia, you _will_ lose your driving privilege. I think you can require them to take a blood test, but that's _in addition_ to the breathalyzer, not instead of it.
Tiller's Rule: Never use a word in written form that you've only heard and never read. You will end up looking foolish.
You do not have the right to refuse the test, but you do have the right to insist on them taking a blood test rather than a urine or breathalyzer test, and you do have the right to refuse the roadside ballet they try to make you do. I don't drink, but if I did, I'd insist on a blood test for two good reasons: It is going to be the most accurate thing, and arranging for it takes longer, giving your liver more time to reduce your BAC.
To clarify, the scantrons are technically still electronic voting machines (but with a paper trail), Florida just got rid of touch screens. Many Florida counties have been using these machines since well before the 2000 fiasco.
http://www.mhall119.com
Clearly you've never driven in Florida or New Jersey.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
The parties are not the ones who get to see confidential business information. Their attorneys and experts do. For example, I just worked on a case where both sides had to produce competition-sensitive documents to the other side in discovery. These documents were clearly marked "CBI," and I would have been in very serious trouble if I had sent these to my client. If I had done so on purpose, I could possibly have been disbarred. So no, the criminals probably won't get to see this source code. Their attorneys will give it to their experts, and if they find something really useful, they will ask the judge if they can pretty please use it in open court after stripping away anything superfluous to the reason for which it is being used. That will not be enough for their clients to make a competing product.
Today's Sesame Street was brought to you by the number e.
The sensor isn't really anything special anymore. Alcohol gas sensors are commodity item and easily had on the parts market. Typically they just output some analog voltage that varies according to the level of alcohol detected. That voltage is subject to calibration and then runs through an ADC to the actual code that maps voltage directly to some magic BAC number. Up until the voltage output, it's all easily tested. The calibration instructions I'll assume are also easily provided by the manufacturer since they [hopefully] perform calibration or provide instructions on how police should calibrate it. After calibrations, all bets are off. After all, it's the BAC number the device spits out, not the voltage of a discrete sensor, that the law is written around.
Analysis of the source needs to confirm that the scale of the sensor matches the scale in the source code used to generate that magic number. Imagine if one of them was logarithmic and the other was linear... there would be a lot of innocent people falsely convinced (and, depending on which one, a lot of guilty people could have gotten off).
And if we haven't?
If you haven't then why is the cop asking you to take one? Stories of police abuse notwithstanding I think you'll find that most members of the police are fairly reasonable and not given to randomly asking people who don't smell like booze to submit to breath tests.
IANAL but if they asked me to take a test and I hadn't been drinking I would submit to it. If it comes back with a false positive then demand a blood test. They aren't known for being highly accurate devices but how likely is it that it's going to register >0.08 if the actual BAC is 0?
Incidentally the only time I've ever been pulled over while drinking the officer didn't even ask for a breath test. He asked if I had been drinking, I told him "Yes, I just had two beers with some friends". He said "Only two?", I said "Yes, only two". Then he ran me for wants/warrants and sent me on my way. Didn't even write a ticket for the original reason (failure to signal) he pulled me over. YMMV of course.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
I agree that the software will tell part of the story on whether or not the device is accurate, but I'd be interested in examining the hardware too. It is easy to imagine that varying conditions (temp, humidity, altitude, exhaust, smoker lung, etc) could alter the operation of the hardware even before the software comes into play. How have these variables been neutralized? Casting doubt on the device would be easy.
Casting doubt is what the defense is interested in, but what the public should really be interested in is the test data (from an independent third party). Have they conducted appropriate tests across sufficient body types and environmental conditions? Lets see the results.
Around here, cops typically call in a request for a 10 and 20 (registration and owner check) before they call the 7 (traffic stop). It's a matter of safety. If the 10 comes back to Guido The Enforcer you call for backup before you make the stop. If it's Gramma Squeekyclean Driving Record, you do only the normal felony stop.
Vodka? Why be so obvious? Just use mouthwash. Mind you not all of them work, but certain ones still do.
:)
Back when I worked on breathalyzer systems for people with suspended licenses, if we ever needed to 'test' a unit all we did was take a sip of mouthwash, spit it out, and blow. Pegs the meter every time. Highest I ever blew was a 0.38... that's damn near dead.