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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."
Finally
Guess there are some judges out there that understand justice.
The courts got it right, this time. Yeah, sure, the whole argument is a no-brainer for anyone who thinks about it for more than 30 seconds, but the jurists weighing similar cases re. voting machine source-code seem to be struggling with it nonetheless.
As pesky as the Bill of Rights can be to swift justice and severe vengeance, I do remember something about the the accused having a right to face their accuser. If the Intoxilyzer uses buggy firmware that results in inaccurate readings, then the accused has every right to question it. The company that makes the Intoxilyzer must be held responsible for its actions as well. Someday, somewhere, some company will step up and say, "Yes, we knew our product was faulty. But we have shareholders who will sell our stock in a heartbeat if we miss our mark in any quarter."
Holding both the accuser and the accused responsible for their actions is what helps create a society based on the rule of law. Otherwise, we'd be a police state. As a practicing trial attorney I *much* prefer the former.
=Smidge=
Is it just my observation, or is eldavojohn an idiot?
I know the "related stories" says this too, but just to get the ball rolling:
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."
So, will this mean voting machine source code will have to be disclosed?
Personally, I'm most surprised that:
a) Governments don't require source code disclosure, at least for purposes of review, when they ask for bids or shop for equipment/software,
b) It's so hard for them to find someone willing to meet a).
Information theory is life. The rest is just the KL divergence.
No. Did you bother reading the summary? The judge ruled the defendant in a criminal case has the right to review the source code of the machine that was used to convict him.. It's not like they ruled that CMI had to open source the thing. That seems pretty reasonable to me.
My blog
To date, CMI is facing more than $2 million in fines because of their refusal to release the source codes, Lipinski noted.
Looks like it's not over yet. Everybody knows breathalyzers are shit anyway.
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. Keep your mouth shut and let 'em take you to the station, but don't take the blood or the piss test(they can't legally make you) later because your results may be worse and the the only thing that matters is your BAC at the time you were driving, not later at the station, so that can be fought. Also keep in mind that some cops make overtime and/or seek promotion and actively seek to bust as many as possible to achieve their goal.
Frankly, if they found a fundamental flaw in this thing, wouldn't that mean that ALL cases in the past where it had been used would have to be reevaluated? Or retroactively dropped altogether?
Imagine that, would people whose drivers license had been revoked and who thus suffered a loss of income or anything of that sort suddenly be entitled to compensation?
For this company, a major mistake in the previously secret code means that any conviction from the device's results is now under suspicion. They will have lost the trust of their ONLY customer market. Not to mention the fact that they will be named as defendants in any resulting lawsuit.
As much as I like hearing about cases of stickin' it to Da Man, I don't know that we should necessarily celebrate this decision quite so much...
All software contains bugs. The defense will find some, and even if they only affect accuracy at the 7th decimal point, the case will get thrown out by a jury based on reasonable doubt. And this doesn't apply just to the current case, but to nearly any legal case using machine-generated evidence. The court allows DNA evidence? How about the firmware in the sequencing machine? Drug test came back positive? Let's see how Agilent's HPLC code rounds in integration.
Now, in some cases (*cough* Diebold *cough*) we may have a valid gripe against a closed-source implementation. But in most cases... Not to make this a case of "for the children", but do you want drunks behind the wheel? Screw the children (calm down, Mr. Jackson, I didn't mean it like that), I don't want to DIAF because someone can't stop at two beers.
That is sage advice for those of us who live in states with implied consent laws.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
If he has an unpatched box, all he has to do is turn on his compromised computer for it to be unknowingly used in such a manner by a remote controlled attacker seeking to traffic illegal material.
That's enough to raise reasonable doubt.
I did read the summary. I'm also not so naive and arrogant that I really believe the source will stay private once criminal defendants can access it. For one thing, they (at least some of them) are *criminals*.
I'll go down to Florida tonight, get smashed, walk up to the first cop I see and demand the test. Three short months later me and my chemistry degree have a competing product on the market.
No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over.
Ever heard of innocent before proven guilty?
The point is, these people may not be drunk drivers at all but rather the victims of a cheap, inaccurate black-box device that would probably rate you intoxicated after a sip of NyQuil.
I hope that the next time a software company doesn't want to disclose it's bullshit algorithms under the "trade secret" claim that it's your wrongfully convicted ass in handcuffs before a judge with your life and reputation is on the line. Maybe then you'll get the point.
Yeah it's utterly horrible that people would actually have to make sure that the evidence they are using against people is actually accurate and not being tainted by flaws in the equipment used or their methodologies. Oh the horrors of that!
No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over.
I think that what it actually means is that a bunch of people who supposedly violated some arbitrary limit on the limit of a specific substance in their bloodstream might have their lives un-ruined.
Is this going to matter for the people who were obviously intoxicated? No. This is going to matter for the people who passed a field sobriety test, didn't appear to be intoxicated, but admitted to having a beer that night and were required to take a breathalyser.
I don't know about the rest of you, but I live in Phoenix, AZ. We have got some of the most absurd drink driving laws in the country. They recently changed the law from .08 to "impaired to the slightest degree". Thats right, boys, did you use mouthwash before heading out tonight? Well, you're spending a month in jail and losing your license.
Wanna cut drunk driving? Keep the f*cking public transportation system running until 3:00am. Provide a free (or at least cheap) taxi service. Don't make a bunch of "creative" parking laws so that if you decide to take a cab home your car gets towed.
NewslilySocial News. No lolcats allowed.
Still, it's a start. If Florida is now legally required to use machines that make the source available, then they will show up as there is now a market for them. Other state departments will quite possibly start to use these knowing full well that if the closed source ones were successfully challenged in Florida, then they could be in their jurisdiction too.
Plus it's just good publicity. It's finally a case where the public understood that "Wait, this magical doohickey has to have a way to figure out the data it provides . . . and if you can't tell us how then we can't rely on what it says.".
"People who think they know everything are very annoying to those of us who do."-Mark Twain
Don't even need all 49. Consider the California Emissions standard. Many companies produce ONLY Cali rated cars because it's cheaper than adjusting their assembly line and shipping procedures to make custom cars only for California.
Looking around on the internet, I only see something like 3 professional grade breathalyzers. At this moment, any company looking to do business in Florida has to disclose their source code*. If two companies don't, that leaves the remaining one with a monopoly in Florida - *ChaChing*.
They might do this in Florida, but what if you get three or four other states passing the same rules? The pressure mounts.
I'm all in favor of this measure. I'm strongly against DUI, but that's countered by my even stronger desire for accuracy and accountability in government, especially criminal matters. Of course, I'm also for NOT counting it as a DUI unless you're actually, driving. Sleeping in the backseat of a dead-cold car in the bar's parking lot with the keys in your jacket isn't DUI.
*Well, they don't strictly have to, but Florida departments would be idiots to buy machines from companies that won't, as they're inadmissable as evidence.
I don't read AC A human right
No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over.
The law protects everyone.
You don't get to bend/break it because you think/know someone is a criminal.
I'm not sure I can overstate just how important Due Process is to our legal system.
But ask yourself: if a judge dismissed exculpatory DNA evidence because the defense didn't procure a geneticist/scientist to testify on the stand, what would you say?
I'd say that's either a sign of ineffective counsel or that you don't have enough money to mount a vigorous defense. There are legal avenues for addressing the injustice of the first situation, but the second is entirely your own problem. Either way, you can bring it up on appeal and try to get a new trial.
[Fuck Beta]
o0t!
The real secret is to keep a sealed bottle of liquor in your car. If your a dumb ass and drive drunk and you get pulled over, pull out the bottle and wait for the officer to come up to your window. When the officer can see you, open the bottle and take a few swigs.
At that point you'll have a good chance of getting away with an open container charge since they'll be unable to prove your BAC when you were actually driving.
In this situation either you are actually drunk while driving, in which case you are a complete jerk and deserve to be locked up, or you are not drunk, in which case you'd save yourself a lot of unnecessary hassle if you just take the test. So your advice is only useful to the guilty trying to evade justice. Therefore, you are a TERRORIST!
Seriously though, I'm sure there is a small probability of a breathalyzer malfunction but that applies to everything else in the world, and there is a way of dealing with that if it happens (as in this case, challenging the evidence and perhaps getting it dismissed in court, requesting a blood test etc) In any case if that is your concern, how do you explain refusing to take the blood test etc. Also, the whole thing about police trying to "bust as many as possible" doesn't make sense, unless you mean to actually catch as many drunk drivers as possible? Isn't that a good thing? Or do you mean the cops somehow rig breathalyzers to show alcohol levels that aren't there?
Negative moral value of force outweighs the positive value of good intentions.
Yeah because I'm sure there will be no NDA agreements or some legal ruling in place to stop you from using this as an excuse to steal people's source code. Are you really that stupid?
While I'm not happy to see a bunch of drunk drivers run free, it's a necessary evil. I hope this becomes precedent throughout the country, forcing manufacturers of devices used to send people to prison to be OPEN about how their devices work down to the source code. Besides, it's the defendant who's paying for the code review, not the taxpayers, and they should have the right to be allowed to review the code for a presence of a bug in the software may cause people to test over the limit regardless of their sobriety.
Can you imagine death-penalty murder trials with "we know you did it because this machine we bought from MegaProfitTechCo analyzed the crime scene and says you're guilty." "How does that machine even work? DNA profiling?" "Can't tell you, it's a trade secret and very complicated, but it took a piece of evidence and said you're guilty."
Exactly.
If you know you are not intoxicated, and are worried that a false-positive will screw you, GET A BLOOD TEST. It's pretty ironclad, and I'll take a few hours of inconvenience over a wrongful conviction based on faulty evidence (or user error -- didn't I read that the breathalyzers are fudgeable?). A blood test is highly unlikely to report you as drunk if you've not been drinking.
If you ARE intoxicated, then you're a hazard and I hope (and trust) that either method will recognize you as the fool that you are. Drunk drivers deserve the convictions.
Disclosing the source code to a defense expert is not the same as disclosing it to the general public. The source code itself doesn't necessarily have to be entered into evidence. It would be sufficient for the defense if their experts are allowed to examine it under a limited NDA. The report of their findings could then be admitted without disclosing the actual code.
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
What about providing proof that it was the version of the source code that was made available for review that was running on the machine at the time the test was administered?
Both [Judge] Henderson and Sarasota County Judge David Denkin ordered CMI to divulge the code, but CMI said it is a protected trade secret.
Although Henderson and Denkin agreed, they determined the refusal was a violation of due process. The judges ruled the breath-test evidence should be tossed from trial.
I don't see anything in TFA that says CMI was forced to disclose their code, or was being held in contempt of court for failing to do so. The ruling was that UNLESS they disclose the code, the output from the machines is inadmissible as evidence.
Of course by failing to disclose their code, they've effectively put themselves out of business (at least in Florida), as their main (only?) customers won't buy their product if it's output is not admissible.
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
Actually, what I see happening is either:
1. Source code shows major flaws and the evidence is tossed out.
2. Source code shows no major flaws and the evidence stands.
In the case of #1, it is a win for society because the company will be forced to either fix their product or risk going out of business. What police station would want to use a breathalyzer that was proven in court to be flawed? Case #1 might be somewhat frequent initially, but will become rarer and rarer.
In the case of #2, it is a win for society because the validity of the breathalyzer software will be affirmed. As case #1's work their way through, the software will be fixed more and more until case #2 is the predominant case.
Either way, society wins. The alternative is a black box device that *might* function the way the makers say it does but might have unknown bugs.
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
That is sage advice for those of us who live in states with implied consent laws.
Either way you are going to lose your license. The question is would you rather lose it through a civil process at DMV or would you rather lose it through the courts and get the added "bonus" of a criminal conviction? The best solution is obviously not to drive drunk but every lawyer I've ever talked to says to refuse the breath test if you've been drinking.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
You can always fight it later on, but you'll almost surely loose your license if you refuse.
If you've been pulled over while drinking losing your license should be the last thing you worry about. A criminal record is going to haunt you a lot more than a suspended license. Why give them evidence that will be used to help secure a conviction that leads to that criminal record?
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
Honestly, it would probably be easier just to write it yourself. It's not some super-top-secret bit of magic code that no one else could reproduce. Have you ever tried working with someone else's code, with know knowledge or insight into the project?
It's not pretty. And this isn't an open source project with a wiki and people contributing to documentation etc. It might have been this one guy who worked there 5 years ago and never made a single code comment.
The code that does the actual work (the calculations) is probably very small. Most of it is probably written to interface with the device. And unless you are getting their exact device -- or one with identical specifications -- then you're going to have to rewrite that anyway. And I suspect they DO have a patent on the device, even if you did somehow get the code.
"That which does not kill us makes us stranger." -Trevor Goodchild
in my state you can refuse - but if you do you automaticly lose your license for 6 months.. no you don't get the DUI/DWI on your record just the lose of license - what you can do how ever is refuse a breathalizer on the basis that it is not acurate to what definds drunk driving which is blood achol level - and then say you are willing to go to the ER and have an actual blood test for it. as long as you offer to take you blood test you can deny the breath test without penatly - although if when they do the blood test you are over the limit you are screwed because there is no question in it's acuracy
'...if only "Jumping to a Conclusion" was an event in the Olympics.'
The penalties are most definitely *not* the same. You DO lose your driver's license. You do NOT have a DUI on your criminal record, probation, fines, etc.
Always refuse.
Is there any truth to this? I've heard it several times before.
I suspect there are a number of other minor infractions that could be piled on including the various "refusal to obey a lawful order" b.s. when the officer orders you to put down the bottle before you've had a chance to drink. Worse still, the officer could "mistake" it for a weapon with the ensuing hilarity of a ride to the hospital while they try to keep all your fluids inside you.
All in all, I think it's a pretty bad idea.
man, I feel like mold.
Of course, I don't believe drinking and driving should really even be a crime to begin with. There's already laws against hitting someone while driving.
The point is to stop you from driving impaired, BEFORE you hit someone, so that you don't hit someone.
Sort of like why 'attempted murder' is illegal. So they can legally stop you before you succeed.
I wouldn't want someone who just sipped NyQuil to be on the roads either, considering that the point of it is to put you to sleep!
On a lighter note, by a funny coincidence, the CAPTCHA word to post this comment about cold medicine is "congest".
But please, let's not get drunk drivers off the road. We need as many as possible out and about to cull the herd.
OK, screw the "insensitive clod" thing, you heartless trolling fuck. My sister, a PhD chemist, was killed on her way to work when some ass-hole, shit-faced drunk before 8 AM, crossed the median and demolished her car with his F150. My brother-in-law, at 29, became a single father of 2 in the early hours the next morning. The fuck driving the truck recovered just fine. "Culling the herd" my ass.
Breathalyzers may be crap, I know very little about them and no longer drink, but there is no excuse for allowing drunk drivers on the road.
The source code likely includes some tables & equations for analyzing the sensor values. Those are probably pretty proprietary, and required a good amount of research & development to get right.
Care about electronic freedom? Consider donating to the EFF!
It means a bunch of drunk drivers will be on the streets free to run whoever they want over... Meanwhile, prosecution of drunk driving will go down, and more drunk drivers will be on the streets.
I respectfully disagree. First, Florida has a waiver form a driver suspected of being impaired beyond their normal faculties may sign denying the breathalyzer, blood, or urine tests. One might initially argue this would have the same effect. However, the consequence of not taking this test is having your license suspended for 1 year. So even if this somehow helps you manage to avoid the normal 2 weeks of county jail time, you have a difficult year ahead of you.
You also need to consider that if you go to court and have a trial for a DUI charge, you're at the mercy of the jury. Reasonable doubt is a high standard, but that isn't synonymous with any doubt (especially hypothetical). I'm optimistic that if you really were impaired beyond your normal faculties and you took a field sobriety and had it recorded on a in-dash camera, there's a good chance a jury would find you guilty. Frankly, as long as police follow protocol and have someone present capturing the sobriety test on camera, proving a breathalyzer's accuracy is not necessarily required to meet the burden of proof.
On the other hand, imagine if you were on the receiving end and were falsely accused of driving under the influence of a substance and impaired beyond your normal faculties. Wouldn't you want the state to be required to do everything possible to meet its burden of proof? False readings are possible (though I suspect not probable), and as for alternative explanations to apparent impairment (i.e. swerving erratically), this could include medical conditions such as untreated/undiagnosed (and unknowning) diabetics. Combine that coincidence with a false reading and you've got yourself a great reason to change your opinion. ^_^ Granted, I wouldn't expect this hypothetical to have any significant probability of happening, but still, it's a good "what if" to ask.
The code is probably a bit more costly than you give it credit for. In fact, it wouldn't surprise me if it were the single biggest barrier to entry an upstart breathalyzer manufacturer would have to face.
But that doesn't mean it holds any trade secret value. Even if there is a reasonable amount of code, I'm guessing it's all pretty straightforward. Most of it probably deals with interfacing between different hardware components, and if your breathalyzer isn't using exactly the same hardware, the source isn't really going to help you.
I suspect the real reason the company wants to keep the source code secret is that if a bug were found, it would be seriously bad publicity.
I wonder how long until someone demands the source code for the cop's radar detector. There's gotta be at least a little bit of assembly code in those.
You see here Judge, that the company is using the improper register d0 when they should have pushed d9 onto the stack and did a bshd9 2 (bitshift register d9) to multiply the input radar signal level by 2.
There are many factors that could alter the reading on a breathalyser. Our bodies get rid of alcohol in many different ways and at varying rates. Some people will naturally blow higher ratings than others. In Australia, after a breathalyzer is used to detect potential drunk drivers, the driver is taken into a "booze bus" or the nearest police station where a blood sample is taken and tested to give the true result. The breathalyzer result should NEVER used in court.
Do you have some sort of evidence to support the idea that people who drive while intoxicated are more likely to infringe copyrights than people who don't drive while intoxicated?
Have you driven a fnord... lately?
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So, what your saying is, the things you do are ok, but the things other people do are not. Wonderful.
Driving with a .08 BAC doesn't mean you're actively trying to cause harm.
That's your opinion.
In my opinion getting yourself reaction and judgment impaired and then hopping into the drivers seat is actively trying to cause harm.
Perhaps it shouldn't actually be a 'criminal offense'. But driving is a privilege not a right, and if you think its ok to get wasted and drive around you should have that privilege revoked.
Now you might argue that 0.08BAC is too low and that it doesn't affect you or whatever, fine, we can have a debate about what the actual number should be. Although I think 0.08 is in the right ballpark, and there are a number of studies which have shown that as you get drunk your ability to accurately gauge how drunk you are goes down. So the people arguing they are just fine at X BAC are far more often than not straight up wrong.
I've been in head on collision with a drunk driver at a combined speed of 110 MPH. The drunk driver simply swerved into my across my side of the road on a state highway in Idaho. Only one of us was wearing a seat belt (I'll let you guess which one).
It may be true in the rural areas of the US that the risk of an alchohol related accident is lower "at an hour when nobody is on the road", but in most urban areas this is never true.
Having sat in the county courthouse for a day waiting to testify at the trial of the now-drooling-brain-damaged-idiot that ran into me, and listening to the lame execuses that other drunk drivers gave, I can honestly say that I have zero tolerance for drunk driving. It's a great way to seriously mess up your life, and those of others who simply have the misfortune to be in your path.
It's stupid. Don't do it.
A One that isn't cold, is scarcely a One at all.
Why are they using a breathalyser as the final form of evidence anyway? In Australia they use the breathalyser as a quick and cheap test to see if you are over 0.05 (the legal limit for fully licensed drivers). If the test says "yes", they then withhold you and perform a blood test to get an accurate reading, the latter of which is used for the actual evidence. So if you do use a mouthwash just before the breathalyser, the blood test is going to prove that you are not drunk.
I like my coffee the way I like my women - roasted and ground up into little tiny pieces.