MN Supreme Court Backs Reasoned Requests For Breathalyzer Source Code

viralMeme writes with news that the Minnesota Supreme Court has upheld the right of drunk-driving defendants to request the source code for the breathalyzer machines used as evidence against them, but only when the defendant provides sufficient arguments to suggest that a review of the code may have an impact on the case. In short: no fishing expeditions. The ruling involves two such requests (PDF), one of which we've been covering for some time. In that case, the defendant, Dale Underdahl simply argued that to challenge the validity of the charges, he had to "go after the testing method itself." The Supreme Court says this was not sufficient. Meanwhile, the other defendant, Timothy Brunner, "submitted a memorandum and nine exhibits to support his request for the source code," which included testimony from a computer science professor about the usefulness of source code in finding voting machine defects, and a report about a similar case in New Jersey where defects were found in the breathalyzer's source code. This was enough for the Supreme Court to acknowledge that an examination of the code could "relate to Brunner's guilt or innocence."

Comments

These guys are no heroes

[Anonymous Coward]

I'd hate to see Slashdot supporting these wreckless drunks just because they claim to be l33t haX0rs.

Re:These guys are no heroes

[houstonbofh]

I'd hate to see Slashdot supporting these wreckless drunks just because they claim to be l33t haX0rs.

That is the point. If the machine is faulty, they are not "drunks." Kinda like that printer wasn't really seeding Smells Like Teen Spirit. Only by examining the procedure for determining that state, can we know.

Re:These guys are no heroes

[Anonymous Coward]

You're already modded as flamebait, so I probably shouldn't respond. Nevertheless, the whole point is that the machine can be FAULTY... thus they weren't drunk. Wouldn't YOU be pissed if you knew you weren't drunk and a magic machine with secret innards said you were?

Re:These guys are no heroes

[mccalli]

Wouldn't YOU be pissed if you knew you weren't drunk

Paging Rene Descarte - Monsieur, we need you urgently....

Cheers,
Ian

Re:These guys are no heroes

[teg]

That is the point. If the machine is faulty, they are not "drunks." Kinda like that printer wasn't really seeding Smells Like Teen Spirit. Only by examining the procedure for determining that state, can we know.

They are innocent until proven guilty. That said, I'd say the odds are rather large that these were driving under the influence and are now fishing for anything that potentially could be used. What about blood tests? Aren't those mandatory if the breathalyzer is positive?

Any code contains bugs. As the input to the process is unknown / contested, noone can prove that a specific path is correct/incorrect here. But in addition to normal software testing, devices like this are tested heavily in black box testing...

Re:These guys are no heroes

[maxume]

GP likely speaks American English.

Re:These guys are no heroes

[Anonymous Coward]

But . . . but . . . "pissed" IS "drunk" . . . and, umm, "grok" is "water" . . . and "Porky" es un cerdo . . . and, and . . . and if one thinks one's pissed, then therefore does one think one's "am"?

Re:These guys are no heroes

[DarkOx]

I'd hate to see slashdoters ignoring the basic principles of our justice system just to pursue some prejudice against accused drunk drivers.

Like it or not the foundation of out criminal justice system is based on the idea its better to let the guilty go free then the innocent be punished. It might be "PC" to "get tough on drunk driving," but this is a nation of laws or at least it used to be. The burden of evidence is supposed to be on the state. If the state is using equipment that must have its inner workings concealed as evidence. I think in the name of justice we must assume that without other pretty damning evidence its not sufficient to prove beyond a reasonable doubt guilt.

If you can't show me how it works or show that it does work in a double blind test with a sufficient sample size, it would not be a good enough argument for me serving on a jury to convict.

The state is much more powerful than and individual the burden of proof is supposed to be on them. A few numbers on an LED display connected to some box you blow in does not cut it, unless you can tell me a lot about what those numbers mean, how they are determined, if its accurate.

Re:These guys are no heroes

[torstenvl]

If the machine is faulty, they are not "drunks."

Um. Wrong. Are you saying there were no drunk drivers before breath machines? Whether or not someone was drunk driving doesn't depend on the machine. Blood tests, failing FSTs, officer observations of your behavior and smell... any of these things are sufficient to convict beyond a reasonable doubt.

"Beyond a reasonable doubt" doesn't mean "beyond a shadow of a doubt." A possible or hypothetical doubt you have because you don't have a machine reading, or fingerprints, or a DNA sample isn't reasonable doubt. A reasonable doubt is one based on reason and the facts in evidence.

If the prosecution has addressed each element of the crime, and for each element you have no reason to doubt it, then conviction is proper.

Re:These guys are no heroes

[Anonymous Coward]

the whole point is that the machine can be FAULTY... thus they weren't drunk

God, I hope you never write software for me or any company I come into contact with.

"Well you see, the print notification daemon that lets us know when the print job succeeded crashed... so none of those confidential documents got printed. Don't worry, your employee who is walking to the printer now won't find the private email/dirty pictures/termination letter draft/whatever."

The breathalyzer doesn't MAKE someone drunk. Alcohol does. A person who has had too much alcohol is drunk, no matter what a machine says. What the machine says is meaningless, especially if the machine is faulty.

No intelligent person could possibly think X is false, just because the thing that said X was true was faulty.

Re:These guys are no heroes

[Arthur Grumbine]

I'd hate to see Slashdot supporting these wreckless drunks just because they claim to be l33t haX0rs.

Well, if they haven't been in an actual car accident it does seem that they shouldn't be as vilified as you're implying...

Re:These guys are no heroes

[amRadioHed]

Well since he said they were wreckless, not reckless, I think he was inadvertently not vilifying anyone.

Re:These guys are no heroes

[burroughsj1]

Blood tests, failing FSTs, officer observations of your behavior and smell... any of these things are sufficient to convict beyond a reasonable doubt.

While you're not quite right about what it takes to convict in a DUI case, you are right in saying that you don't necessarily need breathalyzer results. Hence the ruling: no source code unless it is going to bear on the outcome of the case. If the test results aren't vital to determining guilt, then there is no issue. In many cases, however, they are. In such cases, it's important to know how the test works, and if there is some fundamental problem with its reliability. It's absurd to say that you don't need to know if the test is good or not, since there's other evidence. If that were true, there would be no need for the test in the first place.

Re:These guys are no heroes

[bkpark]

If you can't show me how it works or show that it does work in a double blind test with a sufficient sample size, it would not be a good enough argument for me serving on a jury to convict.

In a statistical test, we would also have to apply a pretty strong definition of "it does work". If it works correctly 99% of the time, that means it's falsely accusing innocents 1% of the time.

Just as one can't prove a negative, it would be impossible to produce a breath analyzer that works 100% of the time under every imaginable condition (temperature, humidity, chemicals in the air ...), but we do need to set strong enough standards that our conscience can deal with the small fraction of innocents accused and "proven" guilty by the machine.

Or we could stop relying on a machine for our justice system and require multiple corroborating evidences (for one, sobriety tests, which should yield fairly good indicator whether someone is too drunk to drive, especially in conjunction with breath analyzer results) before anyone is accused or convicted of drunk driving.

Re:These guys are no heroes

[Devout_IPUite]

Regardless of the laws, BAC should probably be as close to zero-tolerance as is feasible due to non-drink products that contain trace amounts of alcohol, so I'd be less than pleased if they got off because they might have been as low as 0.075 BAC instead of the 0.08 the hardware tested them at.

Re:These guys are no heroes

[shentino]

Defects in the source code IMO constitute reasonable doubt just as if you were given a speeding ticket based upon an improperly calibrated speed gun (kangaroo nature of traffic court notwithstanding)

Additionally, if the source code is suspect enough to invite a challenge to probable cause, then that endangers any subsequent blood tests based on "fruit of a poisoned tree", particularly if the state knew about defects.

Re:These guys are no heroes

[Roger W Moore]

for one, sobriety tests, which should yield fairly good indicator...

There is a test - it is called a blood test. Since the legal limit is set in terms of the amount of alcohol in your blood this is the only completely accurate way to determine whether you are over the limit.

Re:These guys are no heroes

[Anonymous Coward]

In many jurisdictions, a breathalyzer is already not sufficient to prove guilt without other evidence. But I can damned well guarantee that, even without having the source code examined, it more than clears the hurdle for probable cause leading to the arrest.

Re:These guys are no heroes

[ravenshrike]

The problem with blood tests is that they are not taken directly at the scene. Which means it can be anywhere from a half hour to 2 hours from when they were stopped. This mean that their BAC may have changed, higher or lower depending on when they first drink was and their food intake prior to drinking.

Re:These guys are no heroes

[sjames]

I believe what he is saying is that if the machine is faulty, the defendant may well be falsely accused.

Re:These guys are no heroes

[sjames]

If they're wreckless, what's the problem? I'd rather get the wreckfull drivers off the road.

Re:These guys are no heroes

[Anonymous Coward]

So you're saying that it should be possible for anyone to be hauled in for drunk driving if the cops don't like the smell of their breath?

I sure hope the police in your area don't have any reason to dislike you...

Re:These guys are no heroes

[Anonymous Coward]

No. But if you are followed out of a bar, and you're swerving in and out of your lane, and your breath smells like alcohol, and you throw up in the police cruiser, and you're dehydrated and sensitive to light the next day, the jury will probably convict you. And they would be right to.

Re:These guys are no heroes

[Anonymous Coward]

Defects in the source code IMO constitute reasonable doubt

Show me defect-free source code, please and thank you very much.

And by the time they pull you over, they probably already have probable cause (or close). By the time you're asked to take a PBT, there's almost assuredly probable cause for a blood warrant.

Sorry dude, but you don't seem to have a realistic grasp of programming OR the law.

Re:These guys are no heroes

[torstenvl]

you're not quite right about what it takes to convict in a DUI case...

I strongly disagree. If you honestly think differently, give me citations to cases from each of the 50 state supreme courts, or a citation to a U.S. Supreme Court case, stating either (a) that no reasonable jury could convict based on blood tests; or (b) that no reasonable jury could convict based on any combination of field sobriety tests and observed behavior.

Try to do it without an ad hominem this time (you've been belligerent and abusive in prior exchanges, notably the EFF article).

Re:These guys are no heroes

[shentino]

Except that if states KNOW their breathalyzers are suspect, that knowledge can be imputed to the police, and probable cause evaporates.

But you sound like a troll, so I'm not feeding you anymore.

Re:These guys are no heroes

[Evets]

Actually, in the preeminint case on the subject, the expert witness reported that 2.3% of the time, breathalyzers report blood alcohol levels higher than actual blood alcohol levels. Unfortunately, for the defendant, the expert witness had a problem with his math - higher than actual results according to his research happen 23% of the time.

97.7% is a far cry from 99%. 77% is a travesty. That's nearly 1 in 4 people failing breath tests that should pass them.

I'm not advocating drunk driving, but I firmly believe that breath tests are inaccurate to the point that you can't logically consider them when determining somebody's guilt.

A recent cigarette or mouthwash will cause a failure on many breath tests. That's just wrong.

Re:These guys are no heroes

[houstonbofh]

Show me defect-free source code, please and thank you very much.

http://lmgtfy.com/?q=hello+world+source+code

And by the time they pull you over, they probably already have probable cause (or close). By the time you're asked to take a PBT, there's almost assuredly probable cause for a blood warrant.

DUI checkpoints.

Sorry dude, but you don't seem to have a realistic grasp of programming OR the law.

Are you sure that you do?

Re:These guys are no heroes

[houstonbofh]

No. But if you are followed out of a bar, and you're swerving in and out of your lane, and your breath smells like alcohol, and you throw up in the police cruiser, and you're dehydrated and sensitive to light the next day, the jury will probably convict you. And they would be right to.

And the breathalyser evidence would not even be needed, so discrediting it would be moot.

Re:These guys are no heroes

[Anonymous Coward]

I don't mind wreckless drunks. It's the ones who wreck that I have a problem with.

Re:These guys are no heroes

[burroughsj1]

Sorry if I wasn't clear. My point is not that one can never obtain a DUI conviction without a breath test, as I plainly said. Rather, I was saying that your assessment of what it takes to convict isn't quite right. You said that any of the things you listed (odor, fst results, behavior) were proof beyond a reasonable doubt, and enough to secure a conviction, thus making breath results unnecessary. While in certain cases a combination of those things might be enough evidence, the way you portray the situation is not accurate. Without physical evidence of any kind, the chances of a successful conviction drop severely. This is especially true given a competent defense attorney who would introduce evidence of the extreme unreliability of the various field sobriety tests, attack officer reliability and memory, etc. If one has a breath test, at least in my state, nothing else is needed (barring any problems with the results, of course). My point was that breath testing is important to successful prosecution, and ignoring that fact is silly. As you correctly point out, all the prosecution needs to do is prove the case. In many cases, however, breath tests are an important part of that proof. Were that not the case, there would be no discussion about the issue. If you read my post, I think you'll understand what I mean.

I want to assure you that I'm not targeting you in any way- I didn't even realize it was you that I had replied to before. I do find it interesting that on both occasions you've failed to respond substantively to what I posted. I looked back at my reply to you in the EFF discussion, and I really don't think you can begin to call that abuse. I abused the idiot of an AC that replied to me a little, but he was pretty belligerent and abusive himself. (I assume that wasn't you trying to dodge a karma hit) In either case, my arguments never rested in any way on ad hominems. Also, if you want to get picky about logic, I don't need a citation from every state supreme court showing that your assertion is incorrect. The burden lies with you to show evidence supporting your argument. Further, you asked me to disprove points stronger than those you were originally making.

Re:These guys are no heroes

[torstenvl]

"officer observations of your behavior and smell... [is] sufficient to convict beyond a reasonable doubt." (emphasis added)

I never said odor was sufficient in and of itself. To clear up the confusion that may exist, lemme rewrite in lawyerese ;-) :

Any of the following may be sufficient for a reasonable jury to convict beyond a reasonable doubt: (a) blood tests showing a Blood Alcohol Content above statutory limits; (b) failing a properly-administered battery of Field Sobriety Tests; or (c) officer observations of (i) behavior; and (ii) smell.

The chances of conviction drop, yes, but the evidence is nevertheless (as a matter of law) sufficient. Since the discussion was about what "beyond a reasonable doubt" means, and not about prosecutor/defense tactics, I think it's safe to say that my portrayal was not in fact how you read it. Also, while some FSTs really suck, I believe some jurisdictions have legislative findings concerning others. In such states, for example, a horizontal gaze nystagmus test, administered by an officer with a brief training course in optical observation, is admissible and - combined with other FST behavior - sufficient for conviction. Now, if I were a defense attorney I would of course try to discredit the officer -- have him act out in the well how he administered the test, point out if he holds the light too close or too far away, and so on -- but that doesn't change the fact that a properly-administered one is good evidence as a matter of law, and a jury verdict based on that and not much else is unlikely to be overturned.

Also, a minor point I'd like to address just to preempt it from becoming an issue: most jurisdictions now have different kinds of drunk-driving crimes. For example, in my state, OWI (operating while intoxicated) means you were operating with a BAC above 0.08, while DWI (driving while impaired) means you were drunk enough to have noticeably worse driving skill. For purposes of this discussion, I'm referring to the whole drunk-driving statutory regime as "DUI" -- what code number the prosecutor charges under is mostly irrelevant to the standard of proof.

Regardless of the AC's tone in the EFF article, his(/her?) position was mine, and you suggested that only a paralegal without a college education could agree with that position. Besides, even abuse shouldn't beget abuse.

Re:These guys are no heroes

[Mathinker]

Unless there are foods which cause false increases in the BAC, what your comment means is: it's possible that they weren't drunk yet when they had the accident, but they had previously drunk enough alcohol to later be impaired if they hadn't had the accident and had continued to drive. Somehow, I'm not convinced that justice wouldn't be served anyway by overlooking this bit of pendantry.

Re:These guys are no heroes

[FreakyGreenLeaky]

imputed?

I purport that I smell a lawyer in our midst ;)

Re:These guys are no heroes

[Anonymous Coward]

It would be like a police officer that pulls you over for speeding after *both* tagging you with a radar gun, then pulling out and pacing you. If the radar gun is faulty, it wouldn't matter since the officer still paced you and you were speeding. The court isn't going to waste time allowing you to go down a path that cannot possibly affect the outcome of the case, factually or legally.

I hope this isn't too hard to understand for a 1L that seems to be in way over his head. The "fruit of a poisoned tree" reference is cute, but has no bearing whatsoever here. Hit the books before you fail.

Re:These guys are no heroes

[jadavis]

Technically speaking, that does not prove guilt either, unless the blood sample is taken very close to the time the defendant is driving (i.e. not a half hour later).

Re:These guys are no heroes

[PMuse]

I'd hate to see slashdotters ignoring the basic principles of our justice system even if it were the only way successfully to pursue actual drunk drivers. Having principles means that there are effective actions that you won't take because the actions themselves can cause harm.

"better that ten guilty persons escape than that one innocent suffer" --William Blackstone, Commentaries on the Laws of England, c. 1760

Re:These guys are no heroes

[Roger W Moore]

If you take it 30 minutes later and it is still over the limit it certainly does prove guilt. Any delay will only lower the alcohol in the suspects blood (unless they are still guzzling alcohol when pulled over in which case they deserve what they get) and so it is a 'safe' test since it can only err on the side of finding the guilty innocent.

Re:These guys are no heroes

[jadavis]

Actually, sometimes alcohol can take a significant amount of time to be absorbed, particularly with food involved.

See:
http://www.forcon.ca/learning/alcohol.html

For normal social-type drinking, the highest BAC is usually achieved within 30 minutes after completion of consumption, though it could take as long as 60 minutes.

And it can be longer (up to 2 hours, according to the link).

If someone is close to the limit, absorption rate might be a factor -- and might (quite reasonably) put an innocent person in jail.

Now, you could argue that the person still shouldn't be driving, etc. But this will usually be a factor close to the limit, and the limit is already quite conservative (i.e. if a typical person has about 3 drinks, then drives, they could go to jail and pay thousands in fines).

I would be in favor of using a graduated scale where it started out by just enhancing other infractions. In other words, maybe 0.08 is just a ticket (lets say you were pulled over for a broken tail light), but 0.08 and speeding gets something a little worse, and save the harshest penalties for people that are actually drunk and driving recklessly.

Hm.

[Bruce Perens]

Does this mean that if a defendant presents a copy of Bruner's exhibits, he's likely to get the go-ahead in that state?

Re:Hm.

[spun]

That is mentioned as a consequence of the ruling. Now it remains to be seen whether the manufacturer will release the source code. If they won't, presenting a copy of Bruner's exhibits will be a 'get out of jail free' card for drunk driving in Minnesota. Which will mean the state will have to go with a manufacturer that WILL provide the source. Nice.

Re:Hm.

[Bruce Perens]

It means that all states will have to raise standards for the embedded code in those things. Embedded code often really stinks.

Re:Hm.

[spun]

Wait, wait, wait. You're saying embedded code often stinks? Don't we use embedded code in voting machines? My God, has anyone checked them? This sounds like it could be a real problem, I think we need to notify the authorities.

Re:Hm.

[profplump]

Or they could go with a detection method that's actually accurate and verifiable, rather than one that makes a whole slew of assumptions about your body and leaves no sample for third-party testing. If we're supposed to be measuring BAC, couldn't we just sample your blood?

But that's contrary to the prohibitionist agenda that defines "drunk" using arbitrarily low readings from a breathalyzer, so it's unlikely to occur.

Re:Hm.

[Bruce Perens]

If you refuse the breathalizer, they take your blood instead. I suspect that if you fail the breathalizer, they try to take your blood as well.

Re:Hm.

[Mr. Freeman]

Here in Colorado the breathalizer is optional. Of course, refusal to take the test means they can haul you off to jail.
Once they take you to whatever office you can take either:
A) Blood test
B) Brethalater (desk-top version of a breathalizer, presumably more accurate)

If you refuse to take A or B then your license is revoked for a year.

Re:Hm.

[phantomcircuit]

Mod parent up. His post is 100% correct. In the United States if you refuse a Breathalyzer you will be administered a blood test (not that this can take several hours in which you may or may not sober up...).

Re:Hm.

[ari_j]

Breath tests are not the only tests used. Some states don't even permit you to use evidence of a breath test to convict a person of DUI. You have to draw blood. Of course, the breath test is still a pretty big stick to be hit with: It gives the police probable cause to arrest you and do the blood test, and declining to take a breath test will get your license automatically revoked. I don't know the Minnesota rules on using breath test results in court, and I haven't read this decision so I don't know if you can use refusal to provide source code to attack probable cause.

Re:Hm.

[d'fim]

Minnesota's implied consent law carries a breathalyzer refusal penalty of an automatic 12 month driver's license revocation.

Re:Hm.

[Zero__Kelvin]

"Mod parent up. His post is 100% correct. In the United States if you refuse a Breathalyzer you will be administered a blood test (not that this can take several hours in which you may or may not sober up...)." [Emphasis Added}

This is not a federal issue, and the procedures vary from state to state. In Pennsylvania you have to submit blood even if you take a breathalyzer and plead guilty or they take your license for a year. In Massachusetts you can take a breathalyzer or a blood test, but can only do the latter if you can afford to pay a personal physician to show up at the station and perform the test. (Read: Aren't poor and/or ignorant)

So you see, different states abuse citizens right in different ways ;-)

Re:Hm.

[pknoll]

In Minnesota, you may request a blood test in place of the field breathalyzer, which (according to my attorney) you SHOULD do.

You should also decline (again, according to my attorney - consult your own even if you live in MN) to take any of the other "field sobriety tests" such as walking toe-to-heel, lifting one foot and counting, etc. they simply allow the officers to collect more evidence against you. You are not required to submit to these tests.

Any delay in taking the blood test during transport to the medical facility etc. is not relevant, as the rate of metabolism of alcohol in the body is well understood, and your B.A.C. at the time of the stop can be determined.

Re:Hm.

[d'fim]

Correction:
You have to refuse the breathalyzer and the blood test for the penalty to kick in.

Re:Hm.

[Arthur Grumbine]

... I think we need to notify the authorities.

I dunno, maybe we should vote on that.

Re:Hm.

[dryeo]

Can they just take your blood? Here in Canada taking your blood is considered the most serious form of search and not lightly allowed.
It is only allowed (with a search warrant which can be faxed and presented to you the next day) in the case of an accident where the driver is unconscious. Also they have to take 2 samples so you can ask for one to get independently tested.
Refusing to give a breath sample means being charged with failure to blow which carries the same penalties as DUI. Also note that impaired and failure to blow are Federal criminal statutes (as are all criminal statutes).

Re:Hm.

[Workaphobia]

In NY, implied consent is the reigning rule. Although you constitutionally can decline a test, doing so will result in penalties of one form or another.

Re:Hm.

[d'fim]

IANAL, but in Minnesota one "implies consent" to testing when signing the driver's license application -- and drivers from out of state are subject to the same law when driving in Minnesota. One can refuse testing (thereby violating the "implied consent") but then the license is revoked for a year.

Re:Hm.

[spun]

Well I vote [NO]. What? I meant to type [NO]. What's going on here?

Re:Hm.

[bbhack]

In Massachusetts you can take a breathalyzer or a blood test, but can only do the latter if you can afford to pay a personal physician to show up at the station and perform the test. (Read: Aren't poor and/or ignorant)

It's good to know that Massachusetts hates the poor and ignorant. I was unclear on that. Any state that hates poor and ignorant can't be all bad.

Re:Hm.

[Dhalka226]

Be sure to bring some exhibits. They love that sort of thing.

Re:Hm.

[spun]

What, you mean something like twenty seven eight-by-ten colour glossy photographs with circles and arrows and a paragraph on the back of each one explaining what each one was? Don't you know justice is blind?

Re:Hm.

[Anonymous Coward]

In Iowa, you have the right to request a blood test instead, but there's no facilities to actually do it so the po' try to cover that option up.

Re:Hm.

[ClosedSource]

If by "stinks" you mean buggy I disagree. I believe there's a tradition of higher standards in embedded software than other types due to the fact that historically fixing bugs had a much higher price than for traditional software. If you were lucky the software was in proms that had sockets so you could send them a new version in the mail instead of requiring the customer to send the whole unit back for repair.

Today of course, many embedded systems support on-board reprogramming with the update binary provided online, but it's still harder than it would be to patch a desktop or server app.

Re:Hm.

[Bruce Perens]

Sure, there's some really high quality embedded code out there. There's also a lot of "good enough, never touched again after first shipment" code.

Re:Hm.

[dryeo]

Still seems weird to me that such a basic right can be, through implied consent, waived. Especially as driving in much of N. America is close to required to function. Still if you only lose your license for a year for refusing it's not to bad. Here the minimum is 1 yr suspension, $300 fine with jail time quite possible, not to mention the criminal record. And that's only for the first offence.

Re:Hm.

[d'fim]

For those who take Driver's Ed. in MN, it's pretty well covered -- or at least it was in 1980. If you want the right pilot a 1-ton-plus missile through populated areas, you give up the right to hide your intoxication.

Re:Hm.

[Steneub]

I'm glad I'm not the only one who spotted it!

Fishing expeditions

[Brian Gordon]

So essentially challenging evidence gathering methods is insufficient, but making colorful posters and waving around a PhD is fine?

Re:Fishing expeditions

[Bruce Perens]

At times I have been an expert witness. I look at the evidence, and make a reasoned finding which I explain what I think, in terms a layman can apprehend, to the court reporter. If I can't ethically testify in the customer's favor, I tell them so and end the engagement before there is a chance for me to testify.

My cases rarely have much to do with a judge, because civil cases tend to settle. And then get sealed, so you can't see them.

Re:Fishing expeditions

[dada21]

My cases rarely have much to do with a judge, because civil cases tend to settle. And then get sealed, so you can't see them.

I think being an expert witness in a civil trial is vastly different than being called to testify for a criminal case. In civil cases, the penalties are financial and usually end up being worth settling because the legal costs can be more excessive than the settlement costs.

You can't settle criminal cases easily, so shopping for an expert to prevent jail time probably has a heavier weight than finding one to prevent a financial loss or catastrophe.

It's funny that you mention that your job is to produce expert testimony in laymen's terms, when the lawyers (and the judge) do the absolute opposite.

Re:Fishing expeditions

[Bruce Perens]

If I didn't make it clear - my point above is that this is not "waving around a PhD". I don't have one anyway. The experts come in, they testify, and the judge or jury decide whether to believe them or not.

Re:Fishing expeditions

[houstonbofh]

So essentially challenging evidence gathering methods is insufficient, but making colorful posters and waving around a PhD is fine?

Yes. Like a slashdot legal opinion is worthless, and someone who has passed the bar has value. Who is questioning the procedure is relevant.

Re:Fishing expeditions

[Bruce Perens]

I've never found it very difficult to understand the lawyers and judge's case findings. Yes, they use a little Latin, but you can learn the 100 most used words and look up anything more that comes up on the web. And they cite cases, which you can look up too.

Are you talking about contracts?

Re:Fishing expeditions

[dada21]

I also understand most legal gibberish (as an anarcho-capitalist, if it is law-focused, it's gibberish). I would wager one year's income that 9 out of 10 people (my definition of "laymen") would not be able to.

The court wants/demands/expects technical terms and ideology laid out in a way than 9 out of 10 people would understand. The garbage they spew in response wouldn't meet the standards to what they expect.

Re:Fishing expeditions

[codegen]

How did this get marked interesting? What the MN supreme court said is that you cant just say "I want to look at the code because there might, possibly, be something wrong with it", you have to give some idea of *what* you think might be wrong with it. Having someone with expert qualifications to testify on your behalf also strengthens the argument.

Re:Fishing expeditions

[Bruce Perens]

I would wager one year's income that 9 out of 10 people (my definition of "laymen") would not be able to.

Yeah, because they've never learned words like "cloture". But that's the framework that they function in every day, even if they don't think about it much. Nobody taught me that either, I guess I just took the trouble to learn.

Re:Fishing expeditions

[justinlee37]

That's pretty circular logic. How can we speculate as to what might be wrong with it when we can't even see it?

Re:Fishing expeditions

[Zero__Kelvin]

Judge: What do you think might be wrong with it?
Me: I think it might suck wind, like 90% of the proprietary code in production use today.

Re:Fishing expeditions

[JustNiz]

I think the problem here is that the guy caught drunk-driving didn't pass the bar. He stopped and went in.

Re:Fishing expeditions

[laughingcoyote]

Keep in mind that most judges do try to strike a balance between allowing parties to gather necessary evidence and ensuring that there's a reasonable likelihood what's being subpoenaed is relevant and necessary, and at least in theory aren't supposed to allow subpoenas just to fish.

That being said, when one is facing a criminal conviction largely based upon the results from an electronic device, "I want to know exactly how that device works, including its source code", seems on its face to be a request of relevance to the case, as showing that the device is flawed could have major ramifications as to whether a jury could reasonably doubt guilt. On the other hand, having it audited and tested and no flaws found could strengthen the prosecution's reliance on it. Without that ability to audit, we don't know if that electronic device in our case is more valid than a magic 8-ball.

Re:Fishing expeditions

[Trepidity]

I think they're more saying that you need some argument for why you're making the request. The fact that it's sufficient to make colorful posters and wave around a PhD just means that the MN court has put a fairly low bar on how good the argument has to be--- but they do require that you make some sort of argument. The guy whose request was rejected appears not to have made any argument at all for why retrieving the source code would plausibly help his trial; he just stated flatly that it might, which is not usually sufficient. The other guy made some effort to argue why the source code for this sort of device was relevant to his case.

Re:Fishing expeditions

[maxume]

That isn't what happened. One defendant stomped his feet and yelled "Source Code!", and the other stomped his feet and yelled (in a memo!!!) "The source code, which is blah, might be borken!". It seems like a pretty thin distinction to me, but it doesn't rest on antics or bamboozlement.

The good news is that anybody else can probably just submit a reasonably similar memo, they don't need to make a poster or track down a PhD to wave in the air.

Anyway, if the guy who gets to use the code doesn't manage to use it to successfully defend himself, it won't matter all that much.

Re:Fishing expeditions

[Jane Q. Public]

Nevertheless, several of our Founding Fathers expressed the opinion that the law should be restricted to (and interpreted as) English as spoken by the common man at that time. Latin terms and legalese were perceived as an enemy to freedom even then.

Re:Fishing expeditions

[ari_j]

Lawyers and judges not only cite sources, but are strongly encouraged to do so very precisely to an extent that other professions never do. This is both as a matter of professionalism and as a matter of getting your point across. It is more credible to read a sentence and see that it is cited to a specific paragraph in each of five different sources, with a relevant quote from two of them in parentheses, than it is to read a sentence and just see an author's name and a year after it. Making your points in a succinct, reasoned, and credible manner is how you win a legal argument. And that's probably why the APA citation format is less precise: If you don't convince someone your psychology term paper is right, nobody loses their money or freedom.

Legal arguments can be difficult to read if you lack the background. For instance, a legal brief about discretionary immunity to a lawsuit might not make much sense if you are not aware of what immunity means in that context or if you don't know that the way to avoid a jury ever hearing a case about an injury is to convince the judge that this mysterious "duty" thing is missing. But, given only a basic background, any properly-written legal memorandum or brief will be easy to read, with short sentences and well-organized paragraphs, not using obscure words.

By contrast, legal agreements are hard to read because the lawyers who write them spend the entire time trying to think of what loophole they might have missed and how to plug it. It borders on irony that their efforts to be absolutely clear in exactly what every term of the agreement means (and thereby preventing other lawyers from saying they mean something else) result in the agreement as a whole being nearly impossible to comprehend in its entirety at any one moment. The sickening part is that a brief is written for a more legally educated audience than a contract, since the person against whom the contract will be enforced is likely not to be an attorney or judge, and if a person can't understand a contract then he has a slightly better chance of getting out of it.

Re:Fishing expeditions

[blackest_k]

I explain what I think, in terms a layman can apprehend.

Ladies and gentlemen I bring forth the evidence that this is probably a fallacy.

Bruce said http://perens.com/blog/2009/01/31/13/
"Build kernel 2.6.28 or later. Earlier kernels won't help. Enable MTRR cleanup in the kernel configuration, setting Enable=1 and Spare MTRRs=1. You end up with 4 spare MTRRs, as it condenses the 8 used to just 4, and they have the same effect as far as I can tell."

However this was took to mean
https://help.ubuntu.com/community/AspireOne
Pass enable_mtrr_cleanup to kernel in /boot/grub/menu.lst. (Explanation of problem at: http://perens.com/blog/2009/01/31/13/)

I can only say thanks to bruce I built my first kernel successfully ,however clearly theres a difference between what he said and what some people thought he said.
I don't know why but I finished up 2 free mtrrs not 4.

Re:Fishing expeditions

[Brian Gordon]

Sure, how much clearer can it get than "all men are created equal"? Well, they really meant all white male landowners are created equal. Trial by jury and due process - Sure, it's in the constitution! Well... if you're not an enemy combatant. Torture? Absolutely illegal- oh you meant waterboarding, that's not torture. Cruel and unusual punishment? What are you talking about, the lethal injection is quite painless and execution can hardly be called historically unusual.

The Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes ... land, sea, and air forces, as well as other war potential, will never be maintained.

No silly, it doesn't say anything about spending 4 trillion yen per year on self defense forces.

The key is to have specific laws in legalese (that are flexible enough to remain relevant..) that the press can summarize in plain english/spanish.

Re:Fishing expeditions

[Brian Gordon]

He wasn't some armchair blogger he was actually the one being sued. Who has more right to defend the defendant than the defendant himself?!

Re:Fishing expeditions

[Dhalka226]

I remember a discussion about this on /. awhile ago, and somebody brought up a point I couldn't quite remember. I hopped over to the wikipedia page to look for something about found this:

"Some breath analysis machines assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading."

and this:

"Breathalyzers assume that the subject being tested has a 2100-to-1 'partition ratio' in converting alcohol measured in the breath to estimates of alcohol in the blood [. . .] However, this assumed 'partition ratio' varies from 1300:1 to 3100:1 or wider among individuals and within a given individual over time."

I'm not sure what, exactly, I was remembering from the previous discussion; these may or may not be it. What I do remember is that it was essentially that, somewhere in this code, there are assumptions made and that the validity of the assumptions is going to directly affect the validity of the code.

Without knowing what, exactly, this machine is measuring and what it is assuming about the individual taking the test, it's impossible to know whether or not there's any reason to believe the test was inaccurate. Since both of these people argued this case to the Minnesota Supreme Court, I hope they both feel they're innocent.

I suppose this guy's lawyer should have made that argument. On the other hand, I don't think it's unreasonable for judges who are going to oversea DUI cases to understand that a breathalyzer is not, by any stretch, conclusive evidence. Use it to haul somebody in, by all means -- then get yourself a blood test. Bill the person being charged for the test for all I care. The breathalyzer itself should not be admissible in court. (I'm ignoring, by the way, the fact that something like having taken cough medicine could also affect the results.)

Re:Fishing expeditions

[StormReaver]

> He stopped and went in.

And not necessarily in that order.

Re:Fishing expeditions

[phantomfive]

The proper thing for these people to do is to educate themselves. If you aren't educated, you will be taken advantage of by people who are. This may seem unfair, and it is, but those who educate themselves have more power in life. This is a basic fact of life. Once again, there is a way around it: and that is by educating yourself.

Re:Fishing expeditions

[LaskoVortex]

Judge: What do you think might be wrong with it?

The only way to create the digital readout is an analog to digital routine. Now that routine must sure be in hexadecimal if not octal when compressed by the Lempel-Ziv compression algorithm. Considering the routine must have at some point been expressed as assembly, or at least directly translatable into assembly via machine code, there is no way such compression could produce a byte order that would be consistent with the Fourier coefficients. This suggests that the original programmers must have surely misused the Schwartzian Transform, resulting in an expected false positive rate.

Re:Fishing expeditions

[Jane Q. Public]

You cannot blame any of those things on the founding fathers. You know as well as everybody else that if they had publicly advocated the abolition of slavery, or women voting, the government would never have been formed in the first place. Don't blame them for the moral reality of their time. On the other hand, they had the foresight to word it such that women and minorities could vote when the time came, didn't they???

Also, you cannot blame Guantanamo or any of that other recent crap on the people who wrote the Constitution. Abuse of power today has nothing to do with what was written then.

Your conclusion does not follow from your arguments. In fact, nothing much of consequence follows from your arguments.

Re:Fishing expeditions

[Brian Gordon]

I'm not blaming anyone. I was just saying that even (especially?) if you word your laws in "plain English" then lawyers can still find loopholes or interpret the laws differently. Plain English doesn't help.

Re:Fishing expeditions

[Jane Q. Public]

I disagree. It does make a difference. When people do not understand the laws, they cannot be expected to obey them.

Re:Fishing expeditions

[Anonymous Coward]

I'm ignoring, by the way, the fact that something like having taken cough medicine could also affect the results.

Don't worry, cough syrup can affect a lot more than just the results of a breathalyzer.

Re:Fishing expeditions

[Brian Gordon]

But is it the lawmakers' job to ensure that if for some reason a layperson wants to buy The Law they can easily understand it? People dedicate their lives to the study and practice of law; do you think a legal career could compress into an afternoon reading on the beach if our laws were just simpler? These are complex issues that are handled by complex laws, and being less specific in the laws only makes the issue cloudier.

Re:Fishing expeditions

[Jane Q. Public]

If a law applies to the public, but it is not understandable to a significant portion of the public, then the "lawmaker" did not do his or her job. Period.

I don't give a damn about lawyers, or how much work they put in. Why should I? Most of the time they were serving their own pocketbooks, not the interests of the public. They were the ones who have caused the situation we are now in.

Lawmakers are beholden to the public, not to lawyers. If lawmakers are not serving the public, then they are not doing their jobs. If that kind of trend continues, they will eventually be removed from office.

Complex issues handled by complex laws, my ass. I don't know of a single law that applies to the public that need be particularly complex, or that could not be worded in a way that the public can understand. The fact that they ARE complex is the fault of lawyers, and the fact that they can be hard to understand is the fault of lawyers. This is not just a matter of opinion, it shows veryt clearly in the historical record.

Re:Fishing expeditions

[Jane Q. Public]

I would to point out that while I am not a lawyer, I do have some familiarity with the law, and I try to keep abreast of current issues. Law was my best subject at University (I was, in fact, at the literal top of my class). However, I did not choose to pursue law as a profession, because in the process of study I learned that far too many of those who practice it are corrupt to the bone. I had no desire to be associated with them, even peripherally.

Re:Fishing expeditions

[Anonymous Coward]

That's pretty circular logic. How can we speculate as to what might be wrong with it when we can't even see it?

How can the police speculate what you might be doing wrong if they can't break into your car and rifle through all your stuff? They look for suspicious signs: you have trouble staying in your lane; the smell of pot smoke is coming from your car; there's screaming coming from the trunk.

So, it's the same in this case. The defendant can't just say, "I want to dig through the source code so I can find something wrong." There must be some suspicious behavior from the device already. For instance, maybe the defendant had only one 12oz beer and the breathalyzer reported a BAC of .20. Maybe the device was unable to converge on one BAC, vacillating between some wide range like .0 and .15. Maybe the device was registering a BAC significantly over 0 before the defendant even put his mouth on it. Things like that.

Re:Fishing expeditions

[Brian Gordon]

Oh please, historical record? "The public" has never read a single section of any law. If they hear from the media that our laws are hard to understand they'll shrug and have marginally less patriotic pride. The only time The Public gets interested in the law is when there's a travesty of justice, like that kid who recieved a mandatory minimum of 10 years for recieving oral sex from a 15 year old at a party, and even then everything's summarized by the media. Nobody's at the court clerk's office requesting copies of court documents, they're reading the newspaper. Of course it's absurd to predicate law enforcement on the consent of the governed when nobody knows what they're consenting to, but simpler laws make things worse. You have issues like fair use where it's not even possible to figure out what the law is if you're a concerned party, because it's all hand-waving "factors to be considered" and no actually informing people exactly what is illegal.

Re:Fishing expeditions

[Jane Q. Public]

I don't think this is worthy of a response. Good day.

Re:Fishing expeditions

[xouumalperxe]

The court wants/demands/expects technical terms and ideology laid out in a way than 9 out of 10 people would understand.

When practising your profession, you produce documents in that profession's jargon. As a Judge/Lawyer, your work yields legal jargon. Big surprise. Even if public, they're technical documents aimed at a trained audience. It's expected that a lawyer communicates with the judge in a way that's clear and unambiguous for them, and then the lawyer "translates" the jargon to his client. When something technical is required from another field altogether, someone (like Bruce) is called up to translate the technical stuff for the court, in the same way that it is part of the lawyer's job to make the judicial process understandable for his client. I fail to see the duality of standards.

too much code

[Anonymous Coward]

Slashdot has way to much code running on the main page, my laptop's scroll can't keep up and goes bonkers.

Re:too much code

[Bruce Perens]

Install noscript and flashblock. This is assuming you run firefox, which you probably should. Slashdot still works with javascript disabled.

Re:too much code

[houstonbofh]

Slashdot has way to much code running on the main page, my laptop's scroll can't keep up and goes bonkers.

I will get modded off topic for this (and correctly so) but me too. Lately the front page of slashdot feels like running quickbooks in 256 meg of ram!

Re:too much code

[spun]

My first attempt to run X-Windows was on a 386 with 16 megs of RAM, and it worked fine. We used VI in an xterm and that's the way we liked it! Web browsers, bah! Gopher still works, you know. Now get off my lawn.

Re:too much code

[Bruce Perens]

16 MEGS! What luxury. As an early Debian developer, I think I had 4 megs in my system. I remember working a month to make the install disk boot from one floppy.

Re:too much code

[Anonymous Coward]

Firefox sucks.

Re:too much code

[spun]

But try telling that to kids these days, they mod you offtopic. I've half a mind to shake my cane at them.

First ...

[Anonymous Coward]

Frist Pwst!

but, seriously, this is an important step, for a person's rights, and ultimately, toward our collective safety ... it's a necessary evil to be subjected to this type of testing, so at least let's get it right oto prevent false positives ...

That's how science works

[mister_playboy]

I assume breathalyzer evidence is given such great weight because it is "scientific evidence"? Then why shouldn't be subject to peer review... which is a central tenet of science? Without that, it's nothing more than a magical "black box, of unknown accuracy, and does not deserve to be considered "scientific proof"... throw away part of the valid process of science, and you debase the source of its supposed objectivity.

Re:That's how science works

[Anonymous Coward]

Without that, it's nothing more than a magical "black box, of unknown accuracy, and does not deserve to be considered "scientific proof"

Even if it was a magical black box, it could be subject to scientific double-blind testing and you could measure the precision & accuracy of the magical black box.

You don't need to know how something works to know that it works (a lot of engineering is like that).

Example: you can measure the properties of gravity on earth and make very accurate predictions without knowing a single thing about what gravity is.

Re:That's how science works

[denttford]

What you seem to miss this is the application of science in law, not science. As a result, the commonly held method of scientific consensus or peer review is not the issue, but rather how American law deals with scientific evidence (and consensus/peer review): Daubert Standard Frye Standard Agree or disagree, there is plenty of literature on the subject; it's not like no one has thought about this.

Re:That's how science works

[sakdoctor]

I'd go a step further, and refuse any breathalyser that doesn't run linux.

Re:That's how science works

[profplump]

It's of know accuracy, and the accuracy is poor, so no one using it wants to talk about it. Even assuming the device functions exactly as designed it's not very good at determining your BAC because it can only measure the absolute count of methyl-group molecules in the sample chamber, not the amount of alcohol in your blood, or even the sort of things you'd need to make a reasonable estimate given the amount of alcohol in your exhaled breath (subject weight would be a good place to start).

Re:That's how science works

[Bruce Perens]

I think you are allowed to refuse a breathalizer in some jurisdictions. If you do, they take you to get a blood draw immediately, and charge you based on the amount of alcohol measured in your blood. I don't know how they measure it.

Re:That's how science works

[vtcat]

Actually, in some states (Vermont for example) they charge you with refusal, which carries the same penalties as DWI.

Re:That's how science works

[Jane Q. Public]

Where I live, you can refuse either or both. Doing so will automatically get your license revoked for 1 year, under the principle of implied consent. (I.e., by getting a driver's license, you implicitly consent to allow the state to do this. This is a VERY questionable legal principle.)

The Founding Fathers considered the body of a citizen to be the most prized or sacred "property" of all types of property, with proportional rights to privacy. Collection of things like breath or bodily fluids, etc. was a matter of last resort, not allowable under most circumstances.

There is a very strong argument that "mandatory" blood testing is unconstitutional.

Re:That's how science works

[Jane Q. Public]

It is not so much that it is "scientific" (though it is supposed to be). The main issue here is that it is physical evidence, that is (ideally) objective rather than subjective. In contrast to a street sobriety test, which is subjective non-physical evidence.

Re:That's how science works

[ari_j]

In my state, and likely in many others, we have an "implied consent" law. What it says is that you implicitly consent, by signing your name to your driving license, to a breath alcohol test whenever you are stopped for a traffic violation. It also says that, if you revoke your implied consent by refusing a breath test, you automatically lose your license as an administrative matter between you and the department of transportation. Even if you are acquitted of the DUI, you have to take the DOT to court to get your license back, because you broke your agreement in getting it.

We also, as I've mentioned elsewhere in this thread, don't convict you of DUI based on a breath test. The breath test (an SD-2 Breathalyzer machine in most cases) just gives enough evidence to take you in and do a blood draw. This avoids the source code problem, among others, by using well-known, old-fashioned, and I believe published lab methods to measure your blood alcohol content.

Of course, the SD-2 can be used to convict you of being a minor in consumption of alcohol, which makes sense because, whereas the DUI law punishes 0.08% or higher and an inaccurate measurement by the SD-2 can make or break the case, an MIC punishes anything greater than 0%, so an inaccurate measurement only matters if it finds alcohol where there is none, which is vastly less probable than inaccurately measuring the amount of alcohol where there is some.

Re:That's how science works

[Zero__Kelvin]

"There is a very strong argument that "mandatory" blood testing is unconstitutional."

Their (absurd) little argument to get around this is to claim that "driving is not a right, it is a privilege", at least in my home state. You can opt out, you just also opt out of the "privilege" of driving.

Re:That's how science works

[0123456]

Even if it was a magical black box, it could be subject to scientific double-blind testing and you could measure the precision & accuracy of the magical black box.

How do you measure the precision and accuracy of a piece of software without the code?

You could test it a million times and still have it produce complete garbage because of a rare, random buffer overflow, or because it's coded to claim everyone using it is guilty every time the year/month/day/hour is the same as the programmer's mother's telephone number.

Re:That's how science works

[Anonymous Coward]

In my country, Canada, it's a criminal offence to refuse a breathalyzer. Do so and the Police have reasonable grounds to take a sample of your blood, forcibly should you choose to resist, and use that against you to levy an additional charge of impaired driving should you be over the magic BAC % line.

You cannot beat the breathalyzer in Canada by civil disobedience, marvellous system eh?

Re:That's how science works

[0123456]

The main issue here is that it is physical evidence, that is (ideally) objective rather than subjective.

Except your 'objective' evidence tells you very little about that person's driving ability, while your 'subjective' evidence tells you far more.

The problem is that if you were to start subjecting people to objective driving tests to determine whether they're safe to be on the road (measuring reaction times, etc), you lose the link to EVIL ALCOHOL and suddenly start taking away the licenses of people who are lousy drivers even when sober; which would be great for road safety, but not so good for anti-alcohol Nazis.

Re:That's how science works

[Anonymous Coward]

it can only measure the absolute count of methyl-group molecules in the sample chamber

Well, it's alcohol molecules, not methyl groups (I presume you're not a chemist), but yes, that's true.

not the amount of alcohol in your blood, or even the sort of things you'd need to make a reasonable estimate given the amount of alcohol in your exhaled breath

The exhaled alcohol comes from the blood vessels in your lungs. The amount of alcohol in your exhaled breath strongly correlates to the alcohol concentration in your blood, with only very small variations with body size & lung capacity.

(subject weight would be a good place to start).

Subject weight is irrelevant to BAC. You might argue BAC isn't a good measure of impairment, but that's a different story.

Some breathalyzer models may have glitches & errors (which is the subject of this article), but the idea of using exhaled alcohol content to calculate BAC has been proven to be very accurate and has been tested to death.

Re:That's how science works

[rhizome]

but the idea of using exhaled alcohol content to calculate BAC has been proven to be very accurate and has been tested to death.

Nice one AC, then why have I been told time and time again to refuse the Breathalyzer and go straight to the blood test?

Re:That's how science works

[Swaffs]

The point is that these instruments have been thoroughly tested and shown to be accurate. That's where the peer review lies. What difference does it make then in how it does it? I can't possibly believe that a source-code audit of one of these instruments will reveal a bona fide error. Its either a stalling tactic or they're looking to launch a Chewbacca defence by introducing confusing arguments about computer code.

Re:That's how science works

[Seraphim_72]

It also says that, if you revoke your implied consent by refusing a breath test, you automatically lose your license as an administrative matter between you and the department of transportation. Even if you are acquitted of the DUI, you have to take the DOT to court to get your license back, because you broke your agreement in getting it.

Guilty until proven innocent.

It is the same (or worse) here in MN.

I will not believe that you can sign away your constitutional rights. They may try to push you to believe it, but no, you can't do it.

Re:That's how science works

[Anonymous Coward]

Nice one AC, then why have I been told time and time again to refuse the Breathalyzer and go straight to the blood test?

There is a difference between science and legal strategy. Also note that in some jurisdictions refusing the Breathalyzer carries the same penalty as DUI.

If you're pulled over for suspected DUI, a Breathalyzer measures BAC at that time. For a blood test, the cop on the street isn't equipped or trained for that. They are going to take you to the station, find the blood tech, gather the blood equipment, and take the blood sample. This is going to take time (and an emergency might popup in the meantime).

And during all that time, your BAC is declining due to your body metabolizing the alcohol. So the BAC measured by the blood test will usually be lower.

That's why.

Re:That's how science works

[Dhalka226]

I will not believe that you can sign away your constitutional rights. They may try to push you to believe it, but no, you can't do it.

You can, depending on the jurisdiction, according to an Illinois judge.

It's generally assumed that you have a constitutional right to sue. We brought it up in a Constitutional law class many years ago in high school, here in Illinois, with regards to things like sports waivers agreeing not to sue your school. To get a legal opinion, our teacher asked a judge how it went. His response was that in Illinois, legal waivers are legal and enforceable, but that it will vary by state whether or not that is the case.

Your post was about Minnesota, but I know we have pretty much an identical implied consent law here in Illinois. Presumably both are jurisdictions which do not bar citizens from waiving legal rights. I think it's more an issue of contract law than anything else.

Should it be a federal issue? Should you be able to waive your rights? Is it different in civil versus criminal issues? I'm not sure. I'm just reporting the realities of the situation, at least as of... 10 years ago or so, according to a judge.

Re:That's how science works

[Anonymous Coward]

How do you measure the precision and accuracy of a piece of software without the code?

Like anything else - repeatedly measure the results with many types of inputs against known standards.

You could test it a million times and still have it produce complete garbage because of a rare, random buffer overflow, or because it's coded to claim everyone using it is guilty every time the year/month/day/hour is the same as the programmer's mother's telephone number.

You're right, you can't prove the software is error-free without the source code, you're only measuring its accuracy & precision, which is good enough in many cases.

Re:That's how science works

[HappyEngineer]

Doesn't mouthwash set off a breathalyser? (Scope contains alcohol). If so, the breathalyzer certainly isn't enough to prove that someone was drinking.

Re:That's how science works

[johnsonav]

I will not believe that you can sign away your constitutional rights.

Try telling a drill instructor that.

Re:That's how science works

[ari_j]

The possibility for alcohol other than from your bloodstream to be measured by a breath test, throwing off the accuracy of the test, is one reason that, here, we only use it as evidence of probable cause to arrest and give you a blood test, not to convict you.

Re:That's how science works

[mvdwege]

It tells you a lot. Driving impairment is correlated with BAC.

Mart

Re:That's how science works

[Fjandr]

Even if it was a magical black box, it could be subject to scientific double-blind testing and you could measure the precision & accuracy of the magical black box.

Yes, it would be good to require that sort of testing of each person who is ever facing conviction based on a Breathalyzer BAC result. Unless the error rate is exactly zero, every single person has the possibility of falling into that category. That needs to be eliminated prior to a conviction. So, you can do blood and breath experiments for each and every person ever charged with DUI in a lab, or you can provide the source code and the person can show that their personal blood characteristics do or do not match the assumptions that the machine makes every time it runs.

You don't need to know how it works to know the error rate. You do need to know how it works to determine definitively whether a certain reading is erroneous or not.

Re:That's how science works

[sjames]

Daubert superseded Frye and does specifically require that the technique be subject to peer review AND PUBLICATION. That means that the super secret proprietary code in the brethalyser disqualifies it (or should disqualify it) as scientific evidence.

As far as 'generally accepted' goes, since this is essentially a medical test, I would have to presume the medical community's opinion would be relevant. As far as I know, when a doctor wants to know a patient's BAC, they do a blood test every time. Evidently the medical community doesn't consider a breath test to be adequate for determining BAC.

Re:That's how science works

[ari_j]

I don't recall there being a constitutional right to operate a motor vehicle on public roads. You enter into a bargain when you get a driver's license, and the privilege of holding it can be revoked when you break your side of the bargain. Refusing a breath test is just one way. It has nothing to do with constitutional rights.

Re:That's how science works

[sjames]

Of course, the SD-2 can be used to convict you of being a minor in consumption of alcohol, which makes sense because, whereas the DUI law punishes 0.08% or higher and an inaccurate measurement by the SD-2 can make or break the case, an MIC punishes anything greater than 0%, so an inaccurate measurement only matters if it finds alcohol where there is none, which is vastly less probable than inaccurately measuring the amount of alcohol where there is some.

Actually, it can be a problem. Many mouth washes contain alcohol (in that case, the breathalyzer is technically correct, but the assumption that alcohol on your breath means you consumed an alcoholic beverage is faulty). Many breathalyzers cannot distinguish ketones from alcohol. Even is the breathalyzer functions perfectly every time, it's not valid to presume guilt based on the slightest trace of a reading.

Re:That's how science works

[sjames]

You didn't read the last link in the summary then. That was a report on a machine that was audited and was found to be shot full of fundamental errors that certainly could affect it's accuracy including failure to properly allow for settling time when taking readings and performing averaging incorrectly.

The machine was in use and was also supposedly thoroughly tested.

Re:That's how science works

[labnet]

Having designed breathalyser equipment before, I can assure you the standards required of evidential breathalysers is very high.
Testing involves the use of standardised references at different concentrations, over the specified calibration life of the instrument. The science of the relationship to blood alchohol to breath alchohol is well known and defined in a countries standard. (it varies from 2000:1 to 2300:1)
The portable machines the Police use, although accurate, are generally NOT evidential. (some countries though, such as China, will issue on the spot fines based on portable systems)

Essentially the peer review you talk about, was the comittee that designed the countries standardisation test, which then every law enforcement breathalyser needs to pass. Why should a company reaveal its IP? Either the standards test is good enough or not good enough, otherwise why have a standardisation test.

Re:That's how science works

[ari_j]

Allowing the breath test to be used as proof of guilt is different than using it to create the presumption of guilt.

Re:That's how science works

[sjames]

Fine then, it's not reliable as PROOF of guilt either. There are too many things that can make it read non-zero other than consuming an alcoholic beverage.

Re:That's how science works

[dbcad7]

Not disagreeing with you.. but it isn't about Constitutional right to operate a motor vehicle, it is about forcing you to give evidence against yourself, which is unconstitutional. The fact that is part of an agreement between you and the DMV does not mean that it is not against your Constitutional rights... I think that this would come into play, if for example the DMV decided that they could collect your GPS data from your car to determine if you were speeding or not.. with the same parameters of either provide the data or lose your license. Both situations are a case where you may or may not have committed a crime and only evidence provided by you would prove it.

All that being said.. I have no problem with the way things are in most states with the "agreement".. I do think that most states are a little over zealous in the consequences of say a first time DUI, as it is probably more practical and less devastating for someone caught to just refuse a test and lose their license for a year in some cases.

Re:That's how science works

[Jane Q. Public]

I know... and even though courts, up to the Supreme Court, have held that citizens have a right to use "common modes of transportation".

Re:That's how science works

[Jane Q. Public]

I agree. I was not referring to the effectiveness of the idea; I was merely explaining what it was.

Nor would it be good for people who are just plain lousy drivers. There are plenty of those out there.

Re:That's how science works

[Jane Q. Public]

Only in a loose way. And not to the extent currently embodied in law.

There have been MANY studies of this. The reality is not what the lawmakers would have you believe.

First, it is a fact that experienced drinkers can drive safely with a lot more alcohol in their systems than inexperienced drinkers can. (This is one of several ways in which BAC is NOT directly related to driving impairment.) The current legal system does not account for this, and in fact commonly denies it is true, even though the science on this is plentiful, sound, and conclusive.

Some people have a higher physical tolerance for alcohol than others. This is completely separate from the first point. But when you put the two together (some people are more tolerant, and experienced drinkers drive better than inexperienced drinkers do), you end up with a WIDE variety of driving skills, given a certain BAC. This is a fact that the legal system refuses to acknowledge.

Further, the legal limit is set too low. Case in point: the State of Idaho did its own studies, performed through State universities, on driver impairment and BAC. What they found, after rather exhaustive testing, was that at 0.1% BAC, the driving skills of most people were not significantly impaired.

And yet, when MADD put pressure on the legislature to crack down on "driving while intoxicated", Idaho changed the state limit to 0.08%, as was the fad at the time. Even though their own science stated that this would result in the arrest and incarceration of a huge number of people who were not actually intoxicated in any scientific sense of the term.

This was an outright criminal thing to do, and it has indeed led to the arrest, incarceration, and other legal ramifications for countless people who drive, but who are not intoxicated in any realistic sense.

It is any wonder that people -- especially young people -- have lost respect for the law? When some laws become blatantly unreasonable and unjust, the respect for all law goes out the window.

Re:That's how science works

[Buelldozer]

I had a breathalyzer administered roadside by an officer show me as legally intoxicated, which I found very odd since I hadn't consumed ANY alcohol in at least three days.

I absolutely insisted on being taken to the hospital for a proper blood test. The staff there were very much not amused with the officer when my ACTUAL B.A.C. was at .001!

Breathalyzers are great in theory, out in the real world they can AND DO fail.

Re:That's how science works

[ari_j]

And that's why our legal system is adversarial: You are entitled to perform cross-examination and to present evidence that explains the reading as being other than due to you having alcohol in your bloodstream. If you generally refuse to admit a particular kind of evidence just because it might be unreliable in a given case, you end up with no evidence at all in any case.

Re:That's how science works

[mvdwege]

So, how about a cite of those many studies? Because, so far, I haven't heard of a study in a respected journal yet that contradicts the current medical opinion that BAC directly correlates with driving impairment.

The rest of your post is sound and fury. Nice ranting, but it proves nothing. Give me cites from peer-reviewed sources that back up your ranting, and I may take you seriously.

Mart

Re:That's how science works

[edittard]

So you think driving while drunk is OK? If not, how would you test for it?

Re:That's how science works

[Hognoxious]

And during all that time, your BAC is declining due to your body metabolizing the alcohol.

Wrong. It could easily rise due to unabsorbed drinks still in the stomach.

Re:That's how science works

[AmiMoJo]

Often it's not so much the science that is challenged, but the method used to obtain the scientifically supported measurement (of alcohol level).

There have been a lot of cases of people here in the UK getting off driving offences on what are usually described as technicalities simply by requesting that the state prove their measurements were correct. For example, a mobile speed gun operated by a cop has to have been calibrated that day, the cop has to have been trained to use it (with regular re-tests) and the conditions when the measurement was made have to be nearly perfect (i.e. no other nearby vehicles which could have been accidentally measured instead, no rain or spray from the road etc).

Breathalysers need to be regularly calibrated too, and here they usually have to make two independent measurements on different machines (second one is usually at the police station after arrest).

Anyone with enough time/money can usually beat speeding charges and often drink driving ones, but most people just don't want to spend that much time or money so simply pay up.

Re:That's how science works

[smoker2]

I was stopped and breathalysed at the roadside many years ago. I failed the test (orange) and so had to go to the station for a proper test on the lion machine. It also failed me (42 - legal limit is 35). But I had the right to opt for a blood test, which then takes precedence over the other tests. So I gave blood, and never heard anything about it ever again. YMMV. (I still have my blood sample from that test as a reminder).

Re:That's how science works

[sjames]

We bar evidence all the time if it's not reliable. That is particularly true when it might be prejudicial, that is when the judge knows it will LOOK damning to the jury but is in actuality either irrelevant or unreliable. A judge may also instruct the jury to disregard testimony if it fails to meet the relevant standards.A judge may even penalize the prosecution if it knowingly brings a case based only on such inadmissible evidence (though it is more common to simply admonish them and throw the case out). Essentially, refusing to admit evidence is a simple and effective way to avoid adding months to what should be a simple trial and avoid confusing and potentially prejudicing the jury with what will clearly be ruled irrelevant. If that leaves nothing to prosecute, so be it! It's better to let 100 guilty people go than to wrongly convict one innocent.

It could be argued that breathalyzer evidence is hearsay. That is, the breathalyzer is acting as a proxy for it's programmers and designers who claim that it's in-built methodology is valid. That is, the officer is really testifying that "Intoxilizer 5000EN told me that CMI told it that the defendant was intoxicated".

The adversarial process is supposed to be the next line of defense when that is not done. "I think I saw him at..." will be torn apart in court. If we are really appropriately observing the standard of proof and placing the burden of proof on the prosecution, all the defense should need to do is ask "can you demonstrate that that particular breathalyser on that particular night was 100% accurate under those particular conditions? Can you prove that no other medical condition, even a transient one could cause those readings?

In the case of a blood test, the prosecution certainly can prove all of those things beyond reasonable doubt. The methodology is well known, widely peer reviewed and generally accepted as accurate by the medical community. If they have properly retained the sampled blood, the defense can even have a second lab re-test the sample. The blood test is NOT hearsay because the lab submits an affidavit containing their findings and methodology. Because of that, the defense won't likely want to bring it up since it would only serve to further convince the jury of the prosecution's case.

With the breathalyser, the police honestly have no idea how the machine should work and even less idea if it actually does work that way. They can't testify to the methodology of the measurement or adequate controls because that's proprietary information. They can't testify that the machine actually does practice that methodology correctly because the source code is not available for their examination. The sample can't be re-tested by an independant lab because none is retained (nor is it practical to retain one).

Because of all of that, a breathalyser test is an adequate screening test only. If it says you're not under the influence, it's not likely worthwhile to get the blood test. It COULD be wrong about that, but if the officer sees no other evidence that you're impaired, it's close enough. It can help when an officer is genuinely trying to decide if the suspect is intoxicated or if they really are "just tired" or "not feeling well".

Like any screening test, a positive reading only indicates that it is worthwhile to perform the definitive test. Never anything more than that. That is, the screening test IS good enough to establish probable cause for the more invasive test.

Notably, if the police had correctly used the breathalyzer only as a screening test and then performed the definitive blood test, none of this would be before the court today since the breathalyzer would only need to meet the standards for probable cause and the actual conviction would be based on the much stronger evidence of the blood test.

Re:That's how science works

[jadavis]

Even if it was a magical black box, it could be subject to scientific double-blind testing and you could measure the precision & accuracy of the magical black box.

I'm not so sure. There are a lot of variables that need to be controlled for a testing device. You can test it a million times, but maybe it doesn't account for the high pressure and low humidity conditions in, say, Death Valley (hypothetically).

If the person doesn't have insight into the test itself, they have no way of knowing that their particular circumstances make the test less accurate.

Many lab tests are fairly straightforward. But a breath test is complex, apparently so complex that it requires source code that is a trade secret. Surely it must make many assumptions, and if one of those assumptions is wrong because of some unusual circumstance, the defense should be able to challenge it.

Re:That's how science works

[ari_j]

You'd never make it onto a criminal jury - your idea of what "beyond a reasonable doubt" means is stricter than the law permits. Also, a breath test is not reliable per se, which seems to be the starting point for this entire comment. The exact same logic would lead to fingerprints and DNA tests being excluded in 100% of cases because there is some possible way for the evidence to exist at the crime scene other than the most likely one.

Re:That's how science works

[jadavis]

So you think driving while drunk is OK?

I didn't see that claim. There is a difference between making a constitutional argument about the validity of a search, and arguing that the crime itself is "OK".

Re:That's how science works

[sjames]

No, I probably wouldn't. However, there is no law against strict standards of proof! I am only applying the standards of Daubert objectively to the breathalyser. The scary part is that some courts may not be.

The DNA and fingerprint tests would be more akin to the blood test I wrote of above. The methods are published, peer reviewed and generally accepted as accurate. I would, however, insist that there be more proof than we know he was there sometime in the last 2 months. I sincerely hope any jury would insist on more than that. When evaluating evidence, it is important to look at what it actually proves as well as how well it proves it.

If you (that is, prosecution) is going to try to call evidence 'scientific', presumably so it will be granted more weight by the jury, I as a juror will hold it to the standards of science. If they choose to call it "investigative voodoo", I will hold it to considerably lower standards, but won't grant it much weight either.

If we're not going to do that, we might as well have the judge throw the bones, pass sentence accordingly, and move on.

Re:That's how science works

[ari_j]

I agree that you need to be able to poke at the holes, whether (a) in the test itself or (b) in the way that the way the test works is kept a secret from the jury and others. And you can. And should.

Re:That's how science works

[denttford]

IANAL, and from your comment, I'm pretty sure you aren't either.

Daubert superseded Frye generally at the federal level, and in most states. This does not mean Frye does not exist; some states use the older Frye standard (including, to the best of my knowledge, FL, IL, PA) or an amalgam of the two. Consequently it is still relevant.

The major change from Frye to Daubert (and its formulation in FRE 702) is the gatekeeper issue (as described in the wiki entry); whether scientific evidence should be presentable based on a majority acceptance of a theory or technique by the scientific community or the by the presiding judge's evaluation of the credentials of the expert presenting the information. Daubert would allow (IAALs, correct me if I am wrong) a judge to allow an expert to claim, e.g., a given breathalyzer unit has proven reliable in the expert's experience in establishing legal intoxication - without presenting a specific study of that model. Moreover, Daubert does not so much "require" as it does guide the judge, allowing the judge considerable leeway - and I suspect reluctance from appellate courts to reverse their decisions (especially considering the potential impact on their workload). If you want to contest expert testimony, bring an expert of your own : it seems one of the defendants was smart enough to do just that, and he got himself an appeal. The other didn't, based on his "legal intuition" and he got... nothing.

Again, IANAL; if there are errors in my facts or implications, I'd like to be corrected. Also, sorry for the lack of line breaks in the initial post. I'm guilty of hitting submit before preview. :-)

Re:That's how science works

[Anonymous Coward]

Tired drivers cause more accidents than drunk drivers. Slow drivers cause more accidents the fast drivers. I learned this from my driving safety video, but I'm sure you can look it up if you want. I have near accidents almost every day with people talking on cell phones. The only reason there isn't an accident is because I'm paying attention and avoid them. I've never had a near accident with a drunk, but I have witnessed one. Drunk driving is not the serious problem MADD wants you to think it is. They just hate alcohol. They are against designated drivers and free taxi ride homes on New Years Eve. Think about that a bit.

Re:That's how science works

[mvdwege]

So, no cites, just excuses why you should be allowed to drive intoxicated, and abusing the moderation system to mod me 'Troll'. I think it's clear where you stand.

Mart

not necessarily

[Reality Master 201]

If they won't, presenting a copy of Bruner's exhibits will be a 'get out of jail free' card for drunk driving in Minnesota

He could still be found guilty of DUI assuming other evidence was convincing; and for that matter, they could still cart people to a hospital for a blood test.

Step in the right direction

[mcbutterbuns]

I'm glad that the courts allowed the defendant to view the source code (or at least get it analyzed). Software is not without its defects. It's my belief that any software that is used by the government to convict any of its citizens should be open for public review.

Now, the fact that he had to persuade the judge to allow the source code to be examined is upsetting but I think overall, its a positive move.

"Slashdot still works with javascript disabled."

[wowbagger]

"Slashdot still works with javascript disabled."

Sort of.

  For example, without Javascript and running Index2, you cannot delete messages from the system - all the delete anchors are of the form '<a href="#" onclick="stuff">' and so are useless.

And if you aren't running index2, you don't get notifications of responses and the like anymore - at least that has been my experience.

My father wrote the first Felony DWI laws in MN

[cenc]

Thought I would share this, and before a bunch of you start posting BS about the claim of who wrote what, that is not the point. The point is the evolution of MN DWI law and technology.

My father as a prosecutor in Minneapolis in the 60's and 70's started prosecuting drunk drivers for things like felony manslaughter and such. At the time it was just misdemeanor, and often the police would just give someone a ride home. The State legislators and several lobby groups caught wind of it and asked him to write the laws. Those became the first felony laws for DWI in MN, and later where used as a model for other States around the country. Obviously they have been super modified since then, but the fundamental principle that DWI is something serious is still there.

My father went on in private practice as defense attorney in the 80's. Almost all of his acquittals on DWI came down to discrediting the probable cause (i.e. the officer) for the arrest in the first place. Typically the officer's judgment was always front and center (e.g. did he really see him cross the center line on an ice covered road). It got progressively harder as they started adding video cameras and other technology to get someone off on a DWI charge, as the officer's judgment became less important.

I suspect since my father's time, the only thing left to really attack is the validity of the technology itself that measures the crime.

Re:My father wrote the first Felony DWI laws in MN

[Anonymous Coward]

cool story, bro

Will the same thing also be for red light cameras

[Joe The Dragon]

Will the same thing also be for red light cameras / speed cameras / video toll systems and more?

If I get red light ticket should I ask for the light timing tables? the camera timing tables? When the last time the light was tested as well testing the camera system? how it is tied into the light part of the main controller or is it a add on to the controller. Was the railroad system working right if it is a light with a railroad crossing part of it?

There have been cases for yellow times being to short for speed limit of the road and tickets have to be voided and some times the cameras triggering on yellow.

You may end up getting a red light ticket from a quick green to red at a light with a railroad crossing at it. Then if that where me I would want to have the logs and setting for all parts of the light like The pre-emptive / interconnected rail gates to light settings / The light timing settings / mini clear time / time be telling the camera system that the light is red after turning red / yellow time / camera system wait time and other times as well. Maybe even the code but like just the timings and how things are linked will do in that case.

I don't like the idea of a cheap hack like hooking to red light power bus other then a link to the cpu / data bus / network bus that interconnected rail / lights liked to other lights use.

Like this Idea

[mirdamad]

I actually really like the idea that the court system is allowing defendants to view the source code of the breathalyzer. In today's time drunk driving is a very serious offense that could affect the rest of a person's life if convicted. It would be wrong to convict a person of drunk driving if there was an error in the way the breathalyzer was functioning.

Oh jeez

[GameboyRMH]

Just as one can't prove a negative

Not this crap again...

http://www.google.com/#hl=en&q=can't+prove+a+negative

They can't force a blood draw

[Sycraft-fu]

At least not in any jurisdiction I'm aware of, but you can demand one. This is the way to go too, have them take blood, and demand a sample be taken for your attorney as well. The reason is that the only way to accurately measure blood alcohol content is to, well, measure the amount of alcohol in the blood.

The reason the breathalyzer manufacturers are so scared to have their units inspected isn't because there's something evil in the source, but because they know it is a flawed system. They are things that can be accurate, but only if the assumptions they make are correct, and they aren't for all people. As such you can't guarantee an accurate result. If this gets widely shown in court, well then their devices are likely to lose use with law enforcement.

More or less their method for measuring BAC could be compared to measuring the current running through a circuit by measuring the intensity of the light bulb on that circuit. Such a thing can work and give accurate results, but only if you make correct assumptions. You need to know the efficiency of the bulb, the voltage of the circuit, and if there is resistance anywhere else in there. So if your system was designed for incandescent bulbs but your were measuring a florescent, you'd get the wrong result. Same deal if you were designed for a 120v line and it was a 240v bulb.

This is why the breathalyzer companies have flat out refused to hand over their source in various cases. They know that their market is going to vastly shrink if they do.

So as I said: Always demand a blood sample, and another for your lawyer so it can be independently tested. This, of course, won't do any good if you are actually driving drunk but my advice in that situation is don't. However it will do a good job of keeping you from falsely being charged/convicted.

Re:They can't force a blood draw

[Hognoxious]

The problems you mentioned (which appear to be quite valid) have nothing to do with the source as such. They'd apply even to the older, non-computerised devices too, so why hasn't this come up before?

Re:They can't force a blood draw

[Sycraft-fu]

The main reason is that DUI challenges have only recently become widespread. DUI law isn't static, it has become more and more draconian as time goes on, thus more people are getting nailed and inevitably more innocent people.

Time was, there was no DUI law. When cars first came about there were any laws relating to driving drunk. Never really occurred to anyone as needed. Well, as there got to be more cars accidents started happening and people noticed that a non-trivial cause of accidents was someone who was smashed. So laws came about. However initial DUI laws basically just said "You can't drive drunk." There wasn't any specific definitions, just that you couldn't be drunk. This of course lead to arguments in court as to what drunk was. So the government went looking for a standard and asked the AMA what blood alcohol level was likely to be problematic. Their answer was .11. So, now there was an objective standard, and of course the need for devices to measure said standard. At this point there still wasn't too many challenges to DUI. Reason is that you still had to do something to get attention, either drive really poorly and get a cop's attention or get in to an accident. So the number of cases that were right on the line were not that many. Maybe there were some errors in testing but if you BAC is .25, even if there's a 50% error you were STILL intoxicated.

The real problem starts because it didn't stop there. First you got a push to lower the BAC, despite there being no real evidence that it should be. Then there was the institution of checkpoints, where all cars were pulled over and drivers tested regardless. As is probably obvious, the lowering of the limit combine with that, leads to more people getting nailed who shouldn't have, and more people getting nailed who felt they had a legit reason to fight it. Thus there have been more challenges, and as part of that people wanting access to the breathalyzer source.

I wanna kill! kill!

[ClosedSource]

I'm afraid you're joking to the lawn with this one.

Re:I wanna kill! kill!

[spun]

Do you know, if you google the exact phrase 'joking to the lawn,' you'll find no pages? I wonder how long until Google indexes this page? You will be the first example of the phrase on the Internet.

Wow.

I assume it means that an "Alice's Restaurant" reference won't find an audience at Slashdot? I doubt you and I are the only ones here familiar with that song. But still, nice turn of phrase, "Joking to the lawn." Conjures up the sound of crickets chirping for me. :-)

Re:I wanna kill! kill!

[ClosedSource]

Thanks. Yes, that's what I meant - most people under 40 won't get it.

If it looks like a drunk, it probably is.

[tjstork]

I hate to see slashdoters ignoring the basic principles of our justice system just to pursue some prejudice against accused drunk drivers.

I think enough of us who are older have known people to be killed by drunk drivers and I honestly have no idea why drunk drivers are even allowed to live after they kill someone.

Drunk driving is not an accident. Killing someone DUI should be MURDER TWO.

There, that's my prejudice.

The bottom line is, if someone is getting pulled over for DUI, its because they were already obviously driving smashed. You can see them when you drive - weaving, going slow, forgot to put the headlights on, maybe stopping too soon or too often... and for what? Really, for what do people do this?

Re:If it looks like a drunk, it probably is.

[houstonbofh]

>

The bottom line is, if someone is getting pulled over for DUI, its because they were already obviously driving smashed. You can see them when you drive - weaving, going slow, forgot to put the headlights on, maybe stopping too soon or too often... and for what? Really, for what do people do this?

I hope you are never the cop who pulls someone over in diabetic keto acidosis... Looks like a drunk, smells like a drunk, acts like a drunk... And if you just dump them in the drunk tank, they will die and you will be on trial.

Re:If it looks like a drunk, it probably is.

[tjstork]

I hope you are never the cop who pulls someone over in diabetic keto acidosis... Looks like a drunk, smells like a drunk, acts like a drunk... And if you just dump them in the drunk tank, they will die and you will be on trial.

What if the diabetic keto acidosis guy goes and kills someone. Do you really want that person on the road? If they are driving impaired, they are driving impaired, you know. Or should it be legal to hit people because they have diabetes.

Re:If it looks like a drunk, it probably is.

[houstonbofh]

I hope you are never the cop who pulls someone over in diabetic keto acidosis... Looks like a drunk, smells like a drunk, acts like a drunk... And if you just dump them in the drunk tank, they will die and you will be on trial.

What if the diabetic keto acidosis guy goes and kills someone. Do you really want that person on the road? If they are driving impaired, they are driving impaired, you know. Or should it be legal to hit people because they have diabetes.

Is it really so hard to look it up before you comment on it?

Re:If it looks like a drunk, it probably is.

[burroughsj1]

I'm trying to figure out your point. The GP is pointing out that it's important to distinguish between drunks and people in a medical crisis. You responded by saying that people in medical crisis can be dangerous behind the wheel. I fail to see where you could possibly be heading with this.

Re:If it looks like a drunk, it probably is.

[BarefootClown]

The bottom line is, if someone is getting pulled over for DUI, its because they were already obviously driving smashed...

...or drove through a checkpoint, or the cop was profiling, or bored, or the driver was a cute blond and he wanted to flirt.

All of these happen. And, frankly, everything you listed--weaving, going slow, forgot to put the headlights on, maybe stopping too soon or too often--happens with dead-sober drivers, too. And, again, that's assuming it actually happened: cops use these as pretexts all the time to stop drivers whether there's a legitimate reason or not. Go Google "testilying." The whole point of having a trial is to ensure that only people who are actually guilty are convicted.

I'm not defending drunk driving, I'm saying we need to make sure we're only locking up actual drunk drivers, not just casting a wide net and jailing whomever gets tangled in it.

Re:If it looks like a drunk, it probably is.

[Anonymous Coward]

There, that's my prejudice.

Yes, it is. And like every other prejudice it's ignorant, emotional and shameful. You're why victims of crimes should never have any say in sentencing or lawmaking in topics relevant to said crime. You lose all rational thought and become ruled by base emotion.

Re:If it looks like a drunk, it probably is.

[XDirtypunkX]

Actually, it should be involuntary manslaughter. Drunk driving in the usual circumstance does not fit with the mens rea required for murder, unless you're talking about the kind of drunk where you deliberately drive up a crowded foot path to see what you can hit.

Death is neither the certain or even the most likely outcome of drunk driving. The large majority of drunk drivers get home without ever hitting anyone or everything. This make it hard to tie malice aforethought to just being a drunk driver.

Many jurisdictions (especially outside of the US) have a specific charge of "reckless driving causing injury or death" that applies to drunk driving, drugged driving and illegal drag racing. This seems like a good way to deal with the problem, as it allows a specific deterrent to *all* motor vehicular stupidity that can cause death.

...And if it floats, it's probably a duck.

[shog9]

I think enough of us who are older have known people to be killed by drunk drivers and I honestly have no idea why drunk drivers are even allowed to live after they kill someone.

So go kill the drunks that killed your friends. Be the vigilante.
Or allow that due process of law should trump personal feelings in these matters.

The bottom line is, if someone is getting pulled over for DUI, its because they were already obviously driving smashed.

People drive poorly for all sorts of reasons apart from intoxication. Being tired, or distracted, or suffering from a condition that causes poor night vision all too frequently lead to accidents.

And not everyone who gets pulled over is guilty of something. Cops make mistakes too...

Re:...And if it floats, it's probably a duck.

[tjstork]

So go kill the drunks that killed your friends. Be the vigilante.

Eventually this country will come to that.

Or allow that due process of law should trump personal feelings in these matters.

Politicians have made such a mockery of the law that personal feelings towards it should be one of either laughter or contempt.

Re:...And if it floats, it's probably a duck.

[Daniel Dvorkin]

Eventually this country will come to that. ... Politicians have made such a mockery of the law that personal feelings towards it should be one of either laughter or contempt.

You talk tough, but you really wouldn't want to live in the world your pathetic Mad Max fantasies would create.

Re:...And if it floats, it's probably a duck.

[tjstork]

You talk tough, but you really wouldn't want to live in the world your pathetic Mad Max fantasies would create.

If a drunk driver killed my son, I would make the world into a pathetic Mad Max fantasy.

Re:"Slashdot still works with javascript disabled.

[Anonymous Coward]

"Slashdot still works with javascript disabled."

Sort of.

  For example, without Javascript and running Index2, you cannot delete messages from the system - all the delete anchors are of the form '<a href="#" onclick="stuff">' and so are useless.

And if you aren't running index2, you don't get notifications of responses and the like anymore - at least that has been my experience.

Just allow slashdot.org, not the other stuff. Comments clicks nicely expand the thread without a full redraw and cut off.

Sounds like an alcoholic to me

[Katchu]

Treading water in North Africa (deep in de Nile). Simply not drinking and driving avoids such unpleasant circumstances. After all those years, I'm actually happy, joyous, and free not to do that anymore. Good luck, and don't kill my kids, please.

Interesting

[MarkvW]

That thing is a black box. Blow goes in and a number comes out. The State fights attempts to determine what happens in between.

This is good news. Get yourself a software expert (IF YOU'RE DAMN RICH), then evaluate the software.

Way to go Minnesota.

This is going to be a field day for experts ($). The States had better timely respond to this!!

Breath test machines are a fantastic use of open source software. Transparency.

This is HUGE its gonna spread and it's going to really affect lots of things, especially time for trial timelines.

This is going to be the new DWI defense lawyer fad.

Contradiction in terms

[jonaskoelker]

Wouldn't YOU be pissed if you knew you weren't drunk

If I knew I weren't drunk, how could I be pissed (i.e. drunk)?

Re:Contradiction in terms

[Anonymous Coward]

pissed
adj. Vulgar Slang
1. Extremely irritated or angry. Often used with off.

19,400 potential errors in the code!!

[tiananmen tank man]

From one of the links .. (SysTest being the company hired by the Breathalyzer company to review the source code and Base One being the company hired by the accused)
> SysTest only looked for "mal-ware", not for functioning of the code.
>
> Base One, however, did an extensive evaluation, finding 19,400 potential errors in the code.

How can you find "mal-ware" when you don't consider the purpose of the code.

And here is their algorithm to average n = 4 readings ... "When the software takes a series of readings, it first averages the first two readings. Then, it averages the third reading with the average just computed. Then the fourth reading is averaged with the new average ... which would cause the first reading to have more weight ... Nonetheless, the comments say that the values should be averaged, and they are not."

How about the compiler source too?

[ComputingData]

Even if they get the source code for the program, they now have a valid reason to also ask for the source code to the compiler - as this may also have bugs.

In fact, if the program or compiler have had ANY revisions due to bug fixes, then one could argue that the current version of either also could have bugs.

Source code

[Anonymous Coward]

I agree with getting the exact source code of a product in use to support a claim. That professor that got code for the voting machine however is a criminal. He obtained the code illegally, and that company did not prosecute him.

How do i bargained plea?

[tepples]

You can't settle criminal cases easily

In which country? In the United States, most criminal defendants settle with a guilty plea to a lesser charge rather than let the matter go to a jury.

Some idea of what might be wrong

[tepples]

What the MN supreme court said is that you cant just say "I want to look at the code because there might, possibly, be something wrong with it", you have to give some idea of *what* you think might be wrong with it.

I think the algorithm that the device uses to translate signals from a silica sensor into an estimate of blood alcohol has flaws. A relevant one is failure to correct for alcohol in the mouth but not in the bloodstream, such as recent drinking, recent use of mouthwash, or belching. Other problems with breath alcohol measurement in general include failure to correct for hematocrit, failure to correct for breathing pattern, failure to correct for temperature, failure to remind the user to recalibrate against a control, and failure to correct for ketones common in the breath of people with diabetes and low-carb dieters.

I've got the ultimate fix for all of this mess....

[Anonymous Coward]

If you drink, don't drive. Period.

gee... who'ld've thunk it...

Don't drink and drive.

Don't drink, then drive.

If you drink, lose your keys.

I for one, like the idea of this.

Have you had a drink tonight?
      just 1 beer.
Thank you, you're license has beenr revoked for life, and your car will be crushed into a cube and planted in your front yard. Have a nice day!