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

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

[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

[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

[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

[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: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: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.

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

[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

[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

[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: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: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: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: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:Hm.

[d'fim]

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

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.

...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...