Follow Slashdot stories on Twitter

 



Forgot your password?
typodupeerror
The Courts Government News Technology

Florida DUI Law and Open Source 400

Posted by samzenpus
from the no-code-no-breath dept.
pete314 writes "A Florida court this Friday will hear arguments in a case where the accuracy of a breathalyzer is being scrutinized because the manufacturer refuses to release the source code. A state court ruling last year said that accused drunk drivers are entitled to receive details about the inner workings of the "mystical machine" that determined their guilt, and defense attorneys are now using that ruling to open up the device's source code.Is this part of a larger trend? With software bugs being a fact of life, consumers and organizations could claim that they need to be able to verify an application's source code before they accept that their calculations are accurate. Think credit card transactions, speed detecting radar guns, electronic voting machines..." Here is our previous story when this first became an issue in Florida.
This discussion has been archived. No new comments can be posted.

Florida DUI Law and Open Source

Comments Filter:
  • by MacFury (659201) <me&johnkramlich,com> on Wednesday October 19, 2005 @08:41PM (#13832236) Homepage
    If, ideally, the government exists soley for it's citizens. Would it be in our best interest to be able to view the source code of non classified projects? If the government is in fact using our tax dollars to pay programmers, should we be entitled to view the outcome of their work and does it become public domain if paid for by public funds?
    • by jfruhlinger (470035) on Wednesday October 19, 2005 @08:57PM (#13832328) Homepage
      The reason there's no push for this is that for most people, making code open source doesn't actually improve their access to it. For 99.999 percent of the US population (and, I'd wager, a solid majority of Slashdot readers), an open source breathalyzer is still a mysterious box. The only difference is that you could get a computer scientist who doesn't work for the manufacturer to explain it. Now I do think that this is important (especially when it comes to voting machines) but for most people it probably doesn't come across as a great blow for openness and freedom.

      jf
      • by strider44 (650833) on Wednesday October 19, 2005 @10:15PM (#13832748)
        Why does that matter if the average person can read it or not? Here's an analogy, the average person can't read laws as thoroughly as a Lawyer, so should the government just say "Don't worry, you don't need to know anything about these laws, you just have to go to jail when we say so."

        This is used for defining guilt in a court of law, how it works in my opinion is extremely relevant, and people might like to hire a computer scientist to know the value of that definition. I'd bet most people would be quite pissed off if you told them they're going to jail because a little box says so and you have to take it on the little box's word and the word of the makers of the little box.
        • That's the problem with the current legal system. One of the suppositions of the Rule of Law is that everyone should be aware of the laws. There are so many laws, ordinances, regulations, etc. today that it is impossible to know all the ways in which you might be breaking the law. Case in point: we had a groundhog problem in our backyard. We tried to do the humane thing and buy a "live trap." Well, right away we caught a possum. I was going to release it but then I called the local animal control branch, o
      • by Eivind (15695) <eivindorama@gmail.com> on Thursday October 20, 2005 @12:45AM (#13833359) Homepage
        The fact that most people can't examine the source for themselves is irrelevant. Most people also cannot analyse DNA, evaluate a fingerprint-match, read and correctly interpret law, evaluate the speed needed to deform a car in a certain way or or or.

        But without this ruling we had a situation where essentially:

        • You risk paying fines or going to jail if the little box says you where intoxicated.
        • How the box works is a secret.
        • Neither you, nor your lawyer nor your expert witness is allowed to examine the workings of the box.

        That's unacceptable. You've got a rigth to confront the evidence against you. That required you to know exactly what that evidence is, so that you (or your lawyer) can point out weaknesses in the evidence, for example.

        The logical conclusion is that evidence of any kind that is collected by closed-source software, and that is not independently verifiable is not evidence at all, but instead merely the empty claim of a uncheckable device.

    • by rovingeyes (575063) on Wednesday October 19, 2005 @08:58PM (#13832334)
      Would it be in our best interest to be able to view the source code of non classified projects?

      Yes. It would be very ideal and it would be in our very best interest to view the source code. It I think affirms the part of accountability. I want to make sure that my govt. isn't screwing me (fines etc) by writing manipulated code

      If the government is in fact using our tax dollars to pay programmers, should we be entitled to view the outcome of their work

      Of course, I want to be sure and for that matter every responsible citizen should be assured that their dollars are not being just given to corporations. Halliburton rings any bell?

      and does it become public domain if paid for by public funds?

      This is debatable. Obviously you wouldn't want your defense software etc to be open source but breath analyzer, I think poses no threat to national security.

    • by Vombatus (777631) on Wednesday October 19, 2005 @09:05PM (#13832373)
      In a properly functioning democracy, all government should be open source - that is, it should be open to scruitiny from anyone and everyone.

      Some jurisdictions have Freedom of Information and other assorted records laws, which entitle normal citizens the right of access to documents and records, ensure that they are not destroyed to cover things up, etc.

      Unfortunately, some governments work extraordinarily hard to subvert these rights. Of course, some people in some countries/states/etc do not have these rights to begin with.

      So YES, governments should be open source.

  • Umm (Score:5, Insightful)

    by interiot (50685) on Wednesday October 19, 2005 @08:42PM (#13832246) Homepage
    1. Why start with breathalyzers, and not voting machines?

    2. So is this kind of ruling going to spread to radar detectors, baggage-scanning equipment, automated video cameras, etc?

    • Re:Umm (Score:2, Insightful)

      by Cmdr-Absurd (780125)
      Why start with breathalyzers, and not voting machines?

      Because someone is paying a defence attorney big bucks to get him/her off the hook and this angle hasn't been tried yet?

      The average American would rather lose the vote than the driver's license.

    • Re:Umm (Score:3, Insightful)

      by NoTheory (580275)
      1) Because as worried as politicians say they are about voting fraud, they're really not going to do anything serious about it. 2) Depends how much it is fought over. This sounds dangerous enough to vested interests that Congress might even weigh in.
    • Re:Umm (Score:2, Funny)

      by kklein (900361)
      Because more people get DUIs than vote, duh.
  • Sorry But (Score:3, Insightful)

    by mordors9 (665662) on Wednesday October 19, 2005 @08:42PM (#13832249)
    I'm sorry, I am all for open source and think it should be promoted. But if the breathalyzer's accuracy has been tested and verified, not being open source should not be a reason to let a drunk driver off the hook, in my opinion.
    • Re:Sorry But (Score:5, Insightful)

      by Tester (591) <olivier.creteNO@SPAMocrete.ca> on Wednesday October 19, 2005 @08:47PM (#13832272) Homepage
      I'm sorry, I am all for open source and think it should be promoted. But if the breathalyzer's accuracy has been tested and verified, not being open source should not be a reason to let a drunk driver off the hook, in my opinion.

      I'm all for Free Software too.. and I also dont think the drunk driver should be let off the hook. That's why the source code has to be released.. Its not as if it was complex software.. and I mean.. they are selling a machine. Its not like asking Microsoft to Free Windows .. it wont kill the company.. But will probably guarantee a fair trial.. And it creates a good precedent for voting machines, etc.

      • Re:Sorry But (Score:3, Insightful)

        by mordors9 (665662)
        The question remains why. If the accuracy of the machine can be demonstrated why is anyone entitled to the source as part of a criminal trial?
        • Re:Sorry But (Score:5, Insightful)

          by Pedersen (46721) on Wednesday October 19, 2005 @09:45PM (#13832573) Homepage
          If the accuracy of the machine can be demonstrated why is anyone entitled to the source as part of a criminal trial?

          Because the accuracy of the machine can only be demonstrated with the test data that is available. While this should be very close to reality, we have no way of verifying that the test data chosen is relevant to the case of the person on trial. With the source code, we can verify the implementation, and make sure that that implementation will accurately reflect on the defendant.



          Put another way: This software is only slightly less critical than the software which is used in the space program. There, people die. In this case, lives can be destroyed by a wrongful conviction. At least if you die, your problems are over and done with. Now, what if a particular test case was missed? How would you know? Even worse, what if THAT test case shows that one in every 10 readings will be wildly inaccurate? Without the source code, what chance do you have of proving this?

          • "Because the accuracy of the machine can only be demonstrated with the test data that is available. While this should be very close to reality, we have no way of verifying that the test data chosen is relevant to the case of the person on trial. With the source code, we can verify the implementation, and make sure that that implementation will accurately reflect on the defendant."

            Ah, so the machine isn't guaranteed to be without flaws, whereas code review is guaranteed to find these flaws. Fascinating! Mayb
        • Re:Sorry But (Score:4, Insightful)

          by yppiz (574466) on Wednesday October 19, 2005 @11:48PM (#13833183) Homepage
          Let's say I make a black box device that detects whether someone has recently consumed chocolate (mmm, chocolate). I demonstrate it to you by trying it on 10 people who have eaten chocolate, and 10 people who have not. The device is accurate in this trial.

          Now, what you don't know is *how* it does what it does, so you do not know if perhaps there are edge conditions where it fails. Perhaps these conditions are one in a million (remember the Pentium floating point bug?) and so would not show up during testing and calibration.

          If the code and hardware are open to examination, you can then say "this is how it does what it does, and I've verified that there are no error cases that could cause it to act incorrectly or unpredictably."

          --Pat
        • Re:Sorry But (Score:4, Insightful)

          by Alsee (515537) on Thursday October 20, 2005 @08:25AM (#13835033) Homepage
          If the accuracy of the machine can be demonstrated why is anyone entitled to the source as part of a criminal trial?

          Because it makes it impossible for an innocent person to defend himself. That's why.

          It does not matter how many times a black box has given you the correct answer under some artifical test conditions, so long as it is a black box it is impossible to predict when it will give you a wrong answer or to know/explain why it *did* give a false positive under these particular real world conditions.

          Maybe it has some internal clock, and if the unit has been on for more than 48 hours then there is an overflow or some sort of error accumulation. You can you a million calibration tests on the device and never run into that problem because the unit is never left on over night during the test proceedure.

          Does that sound like a rediculous argument? Well in fact the US Patriot Missle system underwent extensive testing and it passed all of those tests. And then once it was actually used out in the field *that exact problem* ocurred. If it was left on for 48 hours it went out of whack and started producing incorrect calculations. You can have a million tests with 100% accuracy and *still* get false results in actual use.

          Perhaps the blood achohol tester gives false positives for people who are on a certain medication, or who have a certain disease. You can run a million laboratory calibration tests on the unit and and get 100% accurate results if none of the test subjects are on that medication or have that disease. However an innocent person (or his hired expert) faced with a FALSE POSITIVE can explicitly look at the factors that may be unique to the case and may have caused that FALSE POSITIVE. They can go over the list of medications he is on, and explicitly check how those medications might interact with the device.

          The entire problem with your position is that you are assuming the person is guilty. Of course no one wants guilty people to get away with it. However the very foundation of our justice system is innocent until proven guilty, and that this presumed innocent person has the right to challenge any witnesses against him and to challenge any evidence against him. In this case he is being denied the right to challenge the evidence against him. The fact that someone in government has tested the device X times and gotten accurate results X times does not change the fact that the defence is being denied the chance to examine and challenge the evidence themselves, and being denied the right and opportunity to discover and reveal how and why a test may have been a false positive. innocent untill proven guilty means the presumption that it may indeed be a false positive and that both sides get to present any evidence and arguments on why it may be a false positive. And of course if there is extensive testing and documentation on the device, and if the government has strong arguments that it is not a flase positive, and if... after being given the opportunity to text/examine the device ...the defence has no evidence and no argument that it was a false positive... then of course you accept it as good evidence, then you accept it as a true positive, only then do you overturn the presumption of innocence.

          The problem here is with the government and the prosecution. If they will not or can not present their evidence for examination by the defense... if they will not or can not present the software for examination by the defense... then both the innocent and the guilty get to go free until the government fixes *their* error. Yes it sucks letting the guilty abuse the government's error in order to go free, but that if prefferable to convicting the innocent due to the government's error.

          And of course the solution is for the government to fix their error. They either need to subpoena the source and turn it over to the defence if they want to examine it, or they need to buy their test units from a different company that does not prohibit the gover
    • Re:Sorry But (Score:4, Insightful)

      by Anita Coney (648748) on Wednesday October 19, 2005 @08:48PM (#13832279) Homepage
      "breathalyzer's accuracy has been tested and verified"

      The breathalyzer's accuracy HAD been tested. But since the tests the company released numerous software upgrades that have not been tested.

      I see no reason to turn over the source code, however, simply retest the devices after each upgrade.
      • by DocSavage64109 (799754) * on Wednesday October 19, 2005 @08:54PM (#13832316)
        If the software is complex enough to require "numerous software upgrades", then it is complex enough to have bugs. And it seems to me that not all bugs would necessarily show up under testing.
      • by Ungrounded Lightning (62228) on Wednesday October 19, 2005 @09:11PM (#13832410) Journal
        Even if the brethalyzer's accuracy had been tested, so what?

        Think about easter eggs and date bugs: How do you know the software works correctly on leap year day? On Sundays? On the 295th test? If the cop enters "124341+" on the keypad just before running the test?

        You don't.

        The output of a machine is NEVER evidence in a trial. What is evidence is the expert testimony of a human - hired by the prosecution - that the output is correct. (This has an incentive structure that encourages both fraud and rose-colored-viewing on the expert's part.)

        To mount a defense the accused needs to be able to hire his OWN expert and let HIM examine the machine and identify any ways it could have made a false indication. Then you get a conviction if, and only if, the prosecution's expert is able to show that none of those occurred, so the reading is accurate.

        For the defense expert to be able to do his job on a software-using system he needs access to the source. If the prosecution is able to deny him that, he has been denied - by his opponent - his due process right to challenge the evidence against him. So the evidence MUST be thrown out if he is to have a fair trial. IM(NAL)HO that's cut and dried.

        Imagine if the machine was a witness. The prosecution gets to question the witness. The defense does not get to cross-examine him. See where that would lead?

        How about a program that allegedly (according to a prosecution's expert witness) examines evidence and says "he's guilty" or "he's innocent"? Without a defense expert examining the code how do you know it's not:

          g = "innocent"
          repeat until eof
              if input line == "officer O'Malley saw a rabbit"
                g = "guilty"
          print "he's " g

        So it's:
          1) open the software generally,
          2) open the software to a long string of (expensive) defense expert witnesses,
          3) not use the software's output if challenged, or
          4) deny due process.

        If they try to settle on 2) it's easy to argue that not going to 1) denys due process to the poor, since they can't take advantage of the expensive experts.

        Result: No closed-software devices can be used by the procecution if challenged (unless the courts decide to deny due process).

        • by OneArmedMan (606657) on Wednesday October 19, 2005 @09:44PM (#13832567)
          There was a case in Australia, where an improved version of the breathalyzer machine "got drunk". After having serveral people blow below the legal limit, the machine started to acrue the alcohol, eg person 1 0.01 PCA, person 2 0.02 PCA , etc etc until this fellow blew and it went over the limit.

          Problem was this fellow was of a religion ( cant remember which one ) that forbade alcohol. So he goes back to the station for a blood test and Lo for the blood test came back negative for alcohol.

          And now blood tests are needed to convict on DUI and "blowing in the bag" is used to see if a blood test is needed.

          ( currently looking for link )
    • Re:Sorry But (Score:4, Insightful)

      by Cylix (55374) on Wednesday October 19, 2005 @08:48PM (#13832282) Homepage Journal
      In one light,

      This is a good tactic to get your client off the hook as people tend to be greedy. This might not work on every judge of course, but it's not a bad tactic to try if you have the money to spend. Who knows... maybe he was not legally intoxicated. The truth is the person is innocent until proven guilty in a court of law (unless you wave that right).

      In another sense... it is a good stepping stone to have those "mysterious" inner workings of other sensitive devices exposed. Oh noes screams the company... we can no longer hide behind the curtain.

      Yeah, it sucks it is being started out with a DUI case with scrutiny being eyed on a critical piece of equipment as a breathalizer, but the trend has to start somewhere.
    • Even if they throw out the breathalyzer the defendants could still be convicted. A breathalyzer exam is only one piece of evidence. You have the testimony of the officer on the scene, results of any touch your nose and walk a line test, etc.

      Also they admit to having software problems in the past CMI had to recall its devices in at least one case due to a software error, he said. Asking to see the source code seems perfectly valid.
      • The point you are missing is that you can refuse to take a breathalizer and you are automatically guilty of being drunk. I'm sorry that is against my rights. I do not want my privacy violated because i'm driving down a major road. So if I say no, I do not wish to be tested and my time wasted, I lose my drivers license.

        Then, how does a police officer's word mean more than a citizen's? If there is no other evidence except the officer saying "i smelled beer all over the car", you can lose your license. A
    • This machine has not been verified. Maybe it works, maybe it doesn't. It is up to the prosecution to prove it works. I'm innocent by that machine until you prove that it works. If there is even a .1% change that it is wrong, I'm innocent.

      I want the drunks locked up. I do not want anyone who is not drunk to get locked up by mistake. We have not yet established that this machine can tell the difference to a reasonable degree of accuracy.

    • But if the breathalyzer's accuracy has been tested and verified, not being open source should not be a reason to let a drunk driver off the hook, in my opinion.

      Here in Australia, the breathalyser result is only used to determine whether or not to take a blood test, and it is the result of the blood test that is actually used in court - the reading on a breathalyser carries no legal weight (at least in terms of a DUI conviction).

  • by rob_squared (821479) <rob AT rob-squared DOT com> on Wednesday October 19, 2005 @08:45PM (#13832261)
    I'm still wondering if this is being used as a legalistic loophole or an honest concern about false arrest. I mean, there is a blood test that has been shown to be just as good or better than a breathalizer.
    • I'm still wondering if this is being used as a legalistic loophole or an honest concern about false arrest. I mean, there is a blood test that has been shown to be just as good or better than a breathalizer.

      A blood test would require either a court order/warrant or permision by the person the blood is to be taken from. Seeing as how this is for drunk drivers, people usually want the results back fairly quickly. Blood tests usually take a while unless you want troopers carrying around a whole lot of nee
    • I'm still wondering if this is being used as a legalistic loophole or an honest concern about false arrest.

      Does the motive matter? Even if the current defendent is as guilty as sin, that doesn't mean someone else hasn't been erroneously convicted due to "false testimony" by a buggy breathlyzer.

      If the end result is less errors with breathlyzers and all the other "magic boxes" that are used to convict people, then isn't that the best result for society in the long run?
    • by Mnemia (218659) on Wednesday October 19, 2005 @09:18PM (#13832451)
      Even if it is a legalistic loophole, it still accomplishes something good, which is that it forces the justice system to only use scientifically verifiable means to judge guilt and innocence. In the end, this will ensure that more guilty drunk drivers get convicted and fewer innocent people are falsly convicted.

      They should be forced to use ONLY tests which can be proven to be statistically accurate and not just by marketing materials produced by the people selling them. This means blood only for *BAC*. Unless you measure BAC directly, it's just an estimate - and one that is only accurate in some people. They should have zero right to convict people on the flimsy evidence they have from these machines. The companies who make the machines have a vested interest in rigging the accuracy tests.
    • I think the question is more, is it a legalist loophole or your basic constitutional right. You have the write to question your accusure. In this case, is a machine and you should have the right to inspect how it works. It would be a very bad precedent to say we can never question the output of any machine. Also if you do a quick google on breathalyzer accuracy, you will find many articles explaining how facters other than alcohol can cause them to give high readings.
    • Your right, the blood test is way more accurate and more importantly you keep the sample as evidence for trial. But here is the problem... in Texas you don't have a right to demand a blood test. It's the cops call to do blood or breath and if you refuse the breath test and offer blood the cop can say no, you refused. Your lawyer can bring this up at trial to try to convince the jury but thats it. So think about your false arrest scenario again. If the breath test is wrong you have no evidence to try t
    • I'm still wondering if this is being used as a legalistic loophole or an honest concern about false arrest.

      No way to know. I'd be inclined to say legalistic loophole, but if I were arrested for DUI and I used this defence it would be an honest concern, but let's say YOU get a DUI and you know you weren't drunk (hadn't drunk any alcohol for months), you'd most likely use this defence and in that case it would be an honest concern.

      I think a much more realistic outcome then the software becoming open sou
  • by Osty (16825) on Wednesday October 19, 2005 @08:52PM (#13832303)

    The larger problem here is that a lot of these tools (breathalyzers, RADAR and LIDAR guns, etc) are dealing with ambiguous data in the first place. For example, the algorithm used to determine BAC in a breathalyzer may be implemented correctly, but what if the algorithm itself is wrong? You're dealing with many variables (a person's mass, their metabolism, etc), and those variables have different values for different people. It's well-known, for example, that women will blow higher on a breathalyzer than a man simply because they're generally smaller.

    Similarly for LIDAR (laser speed detection), the underlying principle is using distance and time to determine rate. Sounds straightforward, as d = r * t, but how do you know you've got the right values for d? It's been shown that rapid movement of a LIDAR gun can cause even inanimate objects to register a rate. How do we know the LIDAR gun measured the distance your car traveled over a period of time, rather than the distance of your car at one point in time and the distance of some other reflective object (say, a much closer stop sign) at a different point in time? At the distances in question, we're talking sharpshooter skills as a requirement for using a LIDAR gun, but it seems that every cop on the force has one. Can they expect us to believe that every cop is a sharpshooter, or that several cups of coffee won't induce shaking in the cop's hands that could cause false readings?

    It's a good precedent, forcing the breathalyzer source to be opened to inspection, but the assumption is still that the underlying algorithm is accurate when it's not. I don't understand why courts continue to rely on technology such as the breathalyzer or the LIDAR gun when there are better, proven tests that could be used instead (blood tests, RADAR or pacing with a calibrated speedometer). Worse, once a court has chosen to allow such evidence (this is not arbitrary, but once the admissability of such a test is challenged and lost it's almost impossible to re-challenge), you can no longer argue that the underlying tool is bad (without extenuating circumstances that would bring the acceptability of such tools back into question). You can argue that the machine wasn't properly calibrated or maintained or that the officer using it was untrained or unqualified or out of practice, but you can't argue that the tool itself is inadmissable as evidence even if the facts are on your side.

    • by NanoGator (522640) on Wednesday October 19, 2005 @09:03PM (#13832359) Homepage Journal
      "The larger problem here is that a lot of these tools (breathalyzers, RADAR and LIDAR guns, etc) are dealing with ambiguous data in the first place. For example, the algorithm used to determine BAC in a breathalyzer may be implemented correctly, but what if the algorithm itself is wrong?"

      Heh. I remember reading a story once where a dude challenged a speeding ticket he recieved. He wanted proof that the machine was properly reading the speed of his vehicle. The company that made the radar gun refused to go into detail about how it worked, afterall that's proprietary information they don't want their competitors having. Ultimately the case was thrown out because they brought the radar gun into the court room and clocked a wall travelling at 4mph.
      • Ultimately the case was thrown out because they brought the radar gun into the court room and clocked a wall travelling at 4mph.

        That's why the police always uses the formula 'speed = measured speed - 5mph'. Exactly *because* the radar gun has an accuracy +/-5 mph. I wonder what would have happened if the wall would have been measured to go at -4mph?
      • There was a story in the news in Australia a while back about a woman getting clocked at 130km/h (or aroundabouts) but the trouble was her car just doesn't go that fast, even on a flat road such as the airport they tested on. Needless to say the speeding ticket was thrown out.
    • In the case of the breathalyzer, it is much more convenient and portable than any blood test (that I know of). What we need is something akin to a glucose meter for testing BAC.

      I think the breathalyzer is a fine tool. That said, if you test someone with it and arrest them, I think the first thing the police should do is take a blood sample. This would prevent this argument, because we would know for sure if the person was legally drunk or not.

      As for the LIDAR gun, I would hope they would have some kind of

    • by Husgaard (858362) on Wednesday October 19, 2005 @09:18PM (#13832444)
      In Denmark where I live, the police wanted to start using breath analyzers to prove intoxication to the court in DUI cases a few years back instead of the blood test that they have been using for years. After some public debate that project was stopped after some experts concluded that breath analyzers were not always completely accurate. Today only blood tests are used.

      But here laser speed detection is widespread to catch speeders, and a very special court case comes to mind: The defendant was accused of speeding in a rural area at a speed nearly physical impossible at the place where his speed was measured with a laser. The police refused to give out any information on the device used, except for the brand and the model. The defence got hold of a copy of the operations manual for the device from an unknown source, and the police had to confirm to the court that it was the operations manual for the device used. The defendant was aquitted because the defence could show that the policeman didn't know about the warnings about reflections in the manual and the he had used it in a way that could give false results. Without the manual the defendent would have been falsely convicted.

    • by oclawgeek (861555) on Wednesday October 19, 2005 @09:35PM (#13832522)
      Before you consider this, it's necessary to understand that in nearly all, if not all, jurisdictions, there are two ways to be convicted of a DUI: (1) driving under the influence of alcohol; and (2) driving with a blood alcohol content of X. As the defense bar gets better at defending against the junk science promoted by "tough on crime" legislators, the laws grow ever more draconian. In some states, like California, the prosecutor is entitled to take advantage of all sorts of evidentiary presumptions, including the presumption that if your blood alcohol level is at or above 0.08 percent as tested on an approved breath analysis instrument, your blood alcohol content is actually at or above 0.08 percent. These presumptions were necessary at every step, because the defense bar was successful in its efforts to demonstrate for juries how unreliable the "science" of the government really was. When you can't win on facts, change the rules. There are a lot of assumptions to challenge when it comes to breath analysis. The underlying "science" is based on a fifty-year old model of how air interacts with blood and how alcohol in alveolar (so-called "deep lung") air can be measured. The hypothetical "average person" doesn't exist, and these "instruments" are not calibrated to account for all of the variable characteristics of a subject that could affect the blood alcohol content. None of this means anything, though, if the evidentiary presumptions all favor the government. Innocence until guilt is proven is a quaint but outmoded concept now. Due process in DUI cases is little but a legal fiction these days. The lawyers in the current case are arguing not for the public release of code, but for a defendant's right to see whether the machine even handles the junk science properly, and if the companies that make these machine won't produce the records, the defendant will not get a dismissal - the court simply will not allow the jury to hear the evidence of the test results. As a practical matter, without the benefit of those test results, the prosecutor's job is very much more difficult. becuase the jury will then have the opportunity to examine the police officer's role in having performed the field sobriety tests correctly (they often aren't), his bias (e.g., his having decided defendant was "drunk" before even administering the tests) and all of the other issues. In other words, all these defense attorneys are fighting for is a fair trial for the defendant. You can't really call it fair if the defendant isn't allowed to exercise his constitutional right to challenge -all- of the evidence against him, can you?
    • You're dealing with many variables (a person's mass, their metabolism, etc), and those variables have different values for different people.

      A BAC isn't really something depends on an "algorithm". Of course different people will have different BACs even after the same amount of alcohol - but that's irrelevant, since "DUI" is a measure of your BAC, not how much you've had to drink. The reason this is done is precisely /because/ different people have different metabolisms, etc.

      It's well-known, for example

  • by rgmoore (133276) * <glandauer@charter.net> on Wednesday October 19, 2005 @08:54PM (#13832314) Homepage

    It's important to remember that visible source code isn't the only requirement for Open Source. For software to be Open Source, it's not only necessary that the source code be available, but also that users are free to modify it and redistribute modified or unmodified copies. There's no real chance that the software in this case will be released under those terms. After all, one of the arguments that the lawyers are using is that the software has been modified without being recertified. It would be much more difficult to ensure that software in use hadn't been modified from a certified version if any user were free to modify it.

    • It's important to remember that visible source code isn't the only requirement for Open Source. For software to be Open Source, it's not only necessary that the source code be available, but also that users are free to modify it and redistribute modified or unmodified copies.

      So will we have to add more definitions and acronyms to the software lexicon?

      Would source code you're allowed to inspect, but cannot modify, be Published Unmodifiable Source (PUS)?

      How about Open Unmodifiable Computing Hardware (O

  • by commodoresloat (172735) on Wednesday October 19, 2005 @08:57PM (#13832329)
    You go to a bar. Someone buys you ten beers. So your intoxication was free as in beer. Then you get pulled over and get a breathalyzer test which gets thrown out of court because the software was not free as in speech. So then you walk out of court, free as in Willy!
    • In real-life, Keiko (the Orca star of Free Willy) was kept in too small a tank after the movie, suffered crippling injuries and various fungal diseases, then when finally released (after extensive physiotherapy in Oregon) died of pneumonia. You're asking a bit much, if you're wanting Florida to do this to all drunk-drivers - they'd never be able to get hold of enough fungus.
  • by Burning Plastic (153446) on Wednesday October 19, 2005 @09:05PM (#13832369) Journal
    One of the easiest ways to get a speeding ticket overturned/dropped (at least in the UK) is to request all of the calibration reports for the particular camera/radar gun used to take your speed.

    If the reports cannot be produced or are older/outside the statutory testing period, then the data produced by the machine will not hold up in court, and so the case will be dropped.

    In some cases, the police simply cannot be bothered/do not have the time to do all of the necessary paperwork, and so the case may just be forgotten/ignored.

    I don't know if this could be applied to a breathalyser, but it would be an interesting to see what would happen...

  • "Convince me" (Score:5, Interesting)

    by $RANDOMLUSER (804576) on Wednesday October 19, 2005 @09:26PM (#13832481)
    Years ago, I was working as a test engineer on a finished product that incorporated a dual-CPU, shared memory design. I was talking to the DUT (Device Under Test) through a serial interface on a (as I recall) 6809, which did the basic control, while a 680x0 (or something similar) did the heavy lifting. I had previously written a "C" standard test API for a single-CPU test interface, which the 6809 implemented in assembly, but large portions of this units functionality were on the 680x0 side of the PC board. Not knowing the 680x0 assembly language, and not having the time, I ended up looking one of the 680x0 device engineers (God, she hated me, but that's another story) in the eye, and saying "Convince me that your stuff does what you say it does...".

    I've never forgotten that lesson. If I know what algorithms are, and how they work, and what a particular language can (and can't) do, I can certify a project, based on the look on the programmer's eye when they answer The Questions.

    • by Illserve (56215)
      This is about the worst advice for verifying the engineering of a complex device that I could think of.

      The person's ability to play it cool under this kind of unsually direct question is probably inversely correlated with their ability to program.

      You described a litmus test for good CEO's, not good engineers. A good engineer is aware of the complexities of the real world, doesn't see things in black and white. When pressed in this manner, a good engineer is immediately going to start second guessing them
  • Blood tests? (Score:4, Informative)

    by csirac (574795) on Wednesday October 19, 2005 @09:32PM (#13832510) Homepage
    Here in Australia, the road-side breath test (RBT) just gets you dragged to the police station, where they take a blood sample. It's the blood sample that gets you convicted, not the RBT... additionally, they take two blood samples: one for you, one for them.

    Aren't blood samples used in the US? Do you not have that option?
    • Hell, that's just downright EVIL if they're going to use facts and stuff...
    • It varies (Score:3, Insightful)

      by Sycraft-fu (314770)
      Remember that states here are somewhat independant and DUI law is largely up to the state. Many, perhaps even all, states will allow a large, more accurate breathilizer to be used as evidence. You are taken to the station and then tested with it. It's cheaper than a blood test, and easier (many people, myself included, hate needles). Now in all the states I know of you can demand a blood sample be taken as well, and your lawyer can have an independant expert examine it. However, I know DUI law for only a co
      • I see. Perhaps our strict anti drink-driving laws are the reason for the more liberal use of blood tests. I forget the specifics, but young drivers automatically lose their license for at least 12 months; I think this is mostly because "provisional" licenses only come with 6 demerit points (IIRC) and DD gets you slogged with 10 or more, even if you're just over the limit. If they can make a special case to the court, proving they need to be able to drive for their employment and livlihood, they can apply to
    • Furthermore if you blow just on .05 they generally don't take you to the station because by the time you get there its probably dropped below the limit.
  • The accuracy of the device could be easily verified by calibrating w/ blood samples using a mass spectrometer. So unless the code is really bad such that it gives erroneous results 1 in a 1000 trials, I'd say this is a lost cause.
    • Re:Calibration (Score:4, Informative)

      by TheMohel (143568) on Wednesday October 19, 2005 @10:27PM (#13832807) Homepage

      I've built medical devices before. This is in essence a medical device. If this were being used in a medical laboratory for medical purposes, source code changes which were not properly recertified would void the FDA approval for the device. There's a reason for that.

      It's a truism in software that you can't verify the absence of bugs by black-box testing, no matter how complete the test vectors. This is doubly true when the software is interacting with the real world, in a nontrivial manner.

      Consider: The device undoubtedly measures a change in itself that occurs in response to the presence of ethanol. A voltage is produced, a current is seen, or a color change occurs in some sensitized material. Some chemical reaction occurs, and produces a detectable change in the device state. But because chemical reactions are susceptible to variation in temperature, in the age of the reagents, in the particular lot of the reagents, and in subtle machine-to-machine differences between reaction sites, the software for the machine must contain built-in adjustments for all of this. If you have a half-dozen linear adjustments that you have to make (not uncommon, in laboratory equipment), the six-dimensional test vectors that you have to check are massive. If you have a dozen such factors, you literally can't test enough combinations to be sure that every combination works. And even worse, you have to verify that the machine is in a known state at the beginning of such a test, and without access to the source you have no way of knowing.

      The question isn't whether the machine can be made to work in a laboratory setting. The question is whether the machine worked this time, in the middle of the night, in an un-airconditioned drunk tank in God-knows-where, as the thirty-fifth breath test that night. If you don't have the source code, you literally can't possibly know what the chances are that it really worked.

      As much as I hate drunk drivers, and as much as I think that the machines are probably pretty good, I'm with the defense attorneys here: produce the source, or stop pretending that this machine can produce proof beyond reasonable doubt.

  • > With software bugs being a fact of life, consumers and organizations could claim that they need to be able to verify an application's source code before they accept that their calculations are accurate

    Similarly, back before the Y2K bug was seen as a huge technological burden on companies, the FDA had proposed some regulations regarding drug manufacturing / quality control that required the process to be fully reviewable during an FDA inspection. As usual the regulation was intentionally vague as to al
  • If just looking at the source could tell you if it worked or not, there would be no such thing as bugs and no need for testing and QA as long as the programmer looked at his code while he typed it.

    If you think the machine doesn't work, prove it with a test case.
  • Prosecuter: Your Honor, Mr. Smith was travelling at a high rate of speed, swerving side to side. He was pulled over, and the officer, upon approaching the car could smell alcohol. Mr. Smith was asked to submit to a breathalyzer test which he agreed to. His blood alcohol level was 1.6, twice the legal limit.

    Defense Attorney: Your Honor, this is preposterous. How can anyone sit there and expect me to think that the machine they are using is accurate. I have good information that these machines are in f

We will have solar energy as soon as the utility companies solve one technical problem -- how to run a sunbeam through a meter.

Working...