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."

Comments

Open Source

[mfh]

The thing I like about open source is that everyone can make the software better. Why a company wouldn't want to produce source code, is beyond me. I think they fear that they will be viewed as incompetent when several mistakes are found in their code, or that sneaky randomizer function call rears its ugly head.

In all seriousness, companies would do well to realize that open source increases revenues by enabling a larger FREE workforce to do your work for you. Put aside your griefs with secrecy, unless of course your code doesn't work, or you stole large chunks of the code, and fear the legal ramifications.

I'd hate to be in their position, either way.

Hahahaha.

[darkmeridian]

No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over. Even if the prosecutors move to blood test, the defendants will require a medical doctor or lab technician to testify as to the nature of the exam and how the test works, and perhaps the manufacturer of the reagents used in the tests have to verify that they are what they are. Tons of money have to be spent by the DA's office, which means higher taxes. Meanwhile, prosecution of drunk driving will go down, and more drunk drivers will be on the streets.

Everyone wins!

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?

Re:Hahahaha.

[sacrilicious]

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."

Something similar happened to me this week (where the similarity increases if you replace "murder trials" with "attempt to pay auto repair bill"). I wrote a check to pay an auto repair bill, and the mechanic taking the check dials someone, reads the check data into the phone, and tells me my check has been "rejected". I've got perfect credit and lots of cash in the bank, mind you. I take the phone and speak to the other party, which I think was some credit agency like experion; a woman in a flat, robotic voice informs me that their "computer model" which takes in "a number of factors" cannot "approve the transaction at this time". She says it does not have anything to do with my supposed bank balance. I ask her if she can disclose what factors are in play in this decision, and she says no, she cannot.

After the call, I have no recourse but to pay by credit card. I don't like paying by credit card for various reasons that are my own, but more to the point I believe I should have the ability to pay by check if I so desire and I'm in good standing.

I told the mechanic I didn't particularly blame him personally, but I did blame his organization for working with an entity that, in this case, made me feel like a criminal. I told him the upshot was that I'd have to take my car to him less frequently.

Fish.

[girlintraining]

I will bet money on one of three outcomes:

1. Breathalyzers cease to be used.
2. The source code will be released and showed to have MAJOR flaws or an algorithm that is not scientific at all.
3. The source code will be suddenly patched and every system will be required to be updated. The "new" source code will be released. Prosecution rates plummet, for some "unknown" reason.

Presumptive admission of guilt

[dazedNconfuzed]

If you're pulled over and suspected of DUI, then don't take the damn test

In many states, refusal to take a breathalyzer test is legally presumed an admission of guilt. You'll have a much harder time reversing a conviction based on a refusal to take the test (to wit: voluntary admission of guilt without evidence thereof) than challenging the accuracy of the instruments used.

Good luck with that.

(BTW: the whole "release the source code" thing is more a rasing-the-stakes legal tactic than a legitimate questioning of the equipment involved. Are you REALLY ready to expend considerable resources to find vindicating flaws in a commercial product? You have to convince the prosecutor you will do it, and succeed, before he'll drop charges in favor of keeping that revenue path flowing.)

Re:Blood testing

[gbjbaanb]

in the UK, the hand-held testers are indicative only. If you fail the test, you're taken to the station for a breath test on a seriously big machine (think old minicomputer sized) or have a blood test, taken by a doctor, for use in a subsequent court case.

I'm sure there are all kinds of health-and-safety, human-rights, and civil-liberties reasons why blood samples cannot be taken at the roadside by a police officer.

Re:Good luck with that!

[Ares]

minnesota is actually involved in a similar case with the same company: http://wcco.com/crime/breathalyzer.lawsuit.minnesota.2.669505.html. the only difference is that in our case, the state dept of public safety claims that its part of the contract that the source code be made available to the state and cmi is still refusing to provide source.

Re:Good luck with that!

[philspear]

I don't know much about breathalyzers besides what they do. Is the source code really the limiting factor to you making a competing line of breathalyzers? I would think the sensor that measures the alchohol on your breath would be the most expensive and most difficult to manufacture part of the whole thing. Perhaps wrongly I would have assumed the source code would be the third easiest thing to make, behind the case for the thing and the hose you breathe into. In other words, I would have assumed that the source code would have been nothing too secret, while the actual sensor was what they spent a lot of money developing.

Of course, if the source code were very simple, I guess the company probably would have released it rather than facing the 2 mil fines. Or maybe that's just typical corporate arrogance.

Can someone explain this to me (hopefully keeping in mind that I have no background in coding)?

Re:Corporations must show responsibility as well:

[Astadar]

Uh... they do. They have the same sort of records for the breathalyzers. I was "fortunate" enough to be chosen for a DWI jury in Texas and we were offered testimony and evidence of exactly that.

Sadly, we had a hung jury because two jurors thought he "didn't look that drunk", even though he was clearly not behaving the way a sane, sober person would act in a situation with that much on the line and he blew more than twice the legal limit (while under age, no less).

Re:At last...

[afidel]

I completely disagree, I recently did a ridealong with my father in law and he pulled the plate of EVERY vehicle we approached for any kind of enforcement activity. The system automatically pulled the record for the registered owner and for the vehicle itself. The records for the owner had a fairly astounding amount of information including addresses of everyone who had ever been associated with the owner through any kind of police report.