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The Courts Government News Technology

Florida DUI Law and Open Source 400

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.
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Florida DUI Law and Open Source

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  • by Ironsides ( 739422 ) on Wednesday October 19, 2005 @09:55PM (#13832318) Homepage Journal
    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 needles and test equipment. Even then there are people, like me, who would not be able to physically drive for at least 20 minutes after having blood drawn. Then there are a few other things they could test blood for that people would object to. Some meds can give false positives for illegal drugs.

    Currently the only way they can check for blood alcohol levels is throug breath analyzers. Blood is out.
  • by jfruhlinger ( 470035 ) on Wednesday October 19, 2005 @09:57PM (#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 NanoGator ( 522640 ) on Wednesday October 19, 2005 @10:03PM (#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.
  • by Vombatus ( 777631 ) on Wednesday October 19, 2005 @10:05PM (#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.

  • Re:Sorry But (Score:4, Interesting)

    by chrpai ( 806494 ) on Wednesday October 19, 2005 @10:07PM (#13832384) Homepage
    I pulled jury duty earlier this year and was placed on a DUI trial. I can tell you that breatholizers are complete bullshit. In Texas if you are pulled over refuse to take the test and offer to have a blood sample instead. They will threaten to take your license away if you say no but it's an administrative process and you can still get exemptions and keep driving.

    I learned alot more about DUI law during that trial and while I never personally drink and drive I could see very easily how one could be falsely suspected and convicted.

    So how did the jury decide? We didn't there was a mistrail because the "sleezy lawyer" ( the prosecutor in this case ) asked the cop a question about the administration of a PBT ( portable breath test ). These are not admissible in TX court and the judge had already said it wasn't allowed in. The judge felt that we wouldn't ignore the fact that we had heard the cops answer and declared a mistrial. He said he felt the prosecutor made a "mistake" but I don't believe it. I think she knew the trial wasn't going her way and wanted a way out.

    It kinda sucked actually.... it was like reading a novel and not getting to read the end of the book.
  • by Husgaard ( 858362 ) on Wednesday October 19, 2005 @10:18PM (#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.

  • Re:Sorry But (Score:5, Interesting)

    by antispam_ben ( 591349 ) on Wednesday October 19, 2005 @10:22PM (#13832464) Journal
    This has nothing to do with the accuracy of the breathalyzer and everything to do with the sleazy practices of DUI defense attorneys.

    An attorney is the last defense between a defendant and The Government, which can, at the point of a gun, take away one's money, freedom or even life. It should be plainly obvious that The Government is much more powerful than the individual, and so it is vitally important that the individual be allowed a representative who will point out when The Government doesn't have an i dotted or a t crossed. Having a defense attorney that gets his client off on "a technicality" is the best way to insure that the government will do ITS job properly, fairly and fully, rather than putting someone in prison unjustly.

    Let me assure you I'm not happy with drunk drivers or any lawbreaker getting off, but it would be much worse for an innocent person to be found guilty.

    I once inherited a "simple" project, a pressure transducer with microcontroller that gave readings to a 'main' computer in decimal. While testing it I noticed that readings were sometimes way off. There was a bug in the binary to decimal conversion routine that causes about a 10 percent error in 1 out of about every 50 values (I recall it was an odd little table lookup thing).

    So these days it DOES happen, and with bugs in "simple" devices perhaps moreso than ever, a "simple device" CAN be very wrong, and in this case it could cause the defendant a large fine, loss of license or even a jail term even though he may have actually below the legal limit.

    You may argue that the legal limit for DUI alcohol tests is too high and should be lowered (further than has been done in recent decades), and there's probably a good argument for that (based on the punishment and very low drunk driving rates in some European contries), but again, this is a different matter than properly enforcing the current law.
  • "Convince me" (Score:5, Interesting)

    by $RANDOMLUSER ( 804576 ) on Wednesday October 19, 2005 @10:26PM (#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 OneArmedMan ( 606657 ) on Wednesday October 19, 2005 @10:44PM (#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 )
  • by virtualXTC ( 609488 ) on Wednesday October 19, 2005 @10:48PM (#13832595) Homepage
    > 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 allow for interpretation where deemed appropriate. I was lucky enough to be working for very compliant and thus, proactive company (now BMS) and got to see how things ideally could be in the pharmaceutical industry: The original guidance given by the agency seemed to require that all equipment and devices have least have some sort of documentation from the vendor saying that they would allow the FDA to look at their source code. It was a MAJOR pain to get companies to agree to such things (as they didn't wanna be held liable for poor code) and thus began the notion that OSS would be used if available. In one notable instance, the manufacture of a UV spec waffled until it came time to fax a document assuring the FDA could look if necessary. Our company ended up returning the whole unit and ordering a different brand. If it weren't for the Y2K worries already burdening the industry, it likely would of turned out that the whole industry would have had to work on VALIDATED and open software -- too bad :(
  • by Barnoid ( 263111 ) on Wednesday October 19, 2005 @10:50PM (#13832604)
    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?
  • by Mr. Jaggers ( 167308 ) <jaggerz AT gmail DOT com> on Wednesday October 19, 2005 @10:59PM (#13832653)
    Yeah, like doppler radar, for example. A product like Eaton's VORAD is only accurate past ~25 feet, and depends on an object moving within it's range (narrow angle, ten degrees or so). It can look out rather far, but if nothing is moving, it won't pick anything up (like the Tyrannosaurs in Jurassic Park (= ).

    I think most police radar guns use a doppler shift technique, so they would need to be pointed at a moving object. However, a quick look at the websites of commercial radar gun companies shows that several are offering "stationary" models. I'm not sure if that means the gun is stationary, or that it rates stationary objects as not moving or, more likely, that the "motion" model/mode claims to clock a vehicle maybe while the detector itself is moving. Who knows?

    At any rate, if I was clocked speeding with some newfangled moving radar gun on a busy road from an officer in a patrol car somewhere, I'd be mighty interested in exactly how it purports to pick out my vehicle amongst others, and what guarantee there is that its accuracy matches the manufacturers claims.
  • by chrpai ( 806494 ) on Wednesday October 19, 2005 @11:07PM (#13832704) Homepage
    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 to disprove it. That sounds more then a legalistic loophole.
  • by aussie_a ( 778472 ) on Wednesday October 19, 2005 @11:27PM (#13832806) Journal
    Obviously you wouldn't want your defense software etc to be open source

    Why not? Or do you believe in the FUD that closed software is inherently more secure?
  • Re:Sorry But (Score:2, Interesting)

    by crimguy ( 563504 ) on Thursday October 20, 2005 @12:43AM (#13833160) Homepage
    It has nothing to do with open source. That's just the spin /. and the writer of the article took.

    I am a DUI defense attorney, and the Intoxilyzer 5000 and 8000 are used in my jurisdiction as well as most states in the U.S.

    Keep the following in mind: even the data from the manufacturer shows the machine is dependent on many factors, including ambient air temperature, pressure variations in the atmosphere, mouth alcohol, breathing patterns, elevated temperature of the subject - none of which is accounted for by the operators (the cop) or the machine (with teh exception of mouth alcohol). This can result in a 20-30% variation in readings. Bet you didn't know that - how would you feel doing a day in jail based on a machine that has that kind of variance?

    The manufacturer does not give people access to their underlying data, so you can't verify the results or the methodology. You must rely on the record keeping of the maintainers - the same people who are trying to convict you. As an attorney, it can be a struggle even getting a copy of the operators manual, much less have the opportunity to actually examine a machine.

    So, while I don't see the need to make the machine's innards open source, I do think they need to allow access to the underlying mechanisms to any defendant that requests it. It is one of the few pieces of "scientific" evidence that doesn't even seem to meet the Frye or Daubert tests that all other scientific evidence must pass.

    Before anyone comes down on the defense attorneys, keep in mind that the guilty usually do get convicted, and what would you do if you were wrongfully accused of something? I've had many, many cases where the Intoxilyzer was malfunctioning, and were it not for an attorney, that person would have a criminal record, have spent between one day and four months in jail (AZ has stiff mandatory minimums for conviction). Don't expect the prosecutor to help you out, that's not in her job description.

    Bottom line - don't drink and drive. You may be sober, but a machine might tell you otherwise.
  • and the rich? (Score:3, Interesting)

    by MacFury ( 659201 ) <me.johnkramlich@com> on Thursday October 20, 2005 @12:53AM (#13833209) Homepage
    In effect, open sourcing many of these systems would give the elite technical people in the community an unfair advantage over their non-technical fellow citizens.

    As opposed to the massive advantage of being rich? I'm not rich, but I'm decently technical, where's my piece of the advantage pie?:-)

  • Re:Sorry But (Score:2, Interesting)

    by Hope Thelps ( 322083 ) on Thursday October 20, 2005 @03:13AM (#13833693)
    The thing is that both have been done already in order to get the device approved, and the one aspect that's going to drift over time (test results) gets recalibrated on a regular basis.

    The defense has to be able to challenge the evidence. Just like they can get their own expert to challenge the techniques used for finger print matching, or any other aspect of the evidence. To say that the court must accept the claims of some past expert and not permit the defense to have access to the information necessary to challenge the findings of that expert is totally incompatible with our system of justice.
  • by TheoMurpse ( 729043 ) on Thursday October 20, 2005 @04:11AM (#13833870) Homepage
    The question of whether closed software is inherently more secure is not the issue. The issue is whether or not, all things being equal, a certain software package that is unmodifiable by civilians (since it's military grade, they won't just accept your patches) gains nothing by being open source, but loses any security through obscurity (which exists until the software is cracked, and it can't be cracked by enemies if the only people who have access to the software are those in my government (traitors aside).

    Even aside from that, the question is simply, all other things being equal, is a certain software package more secure when it the code is read-only to the public? The answer is no. Did Windows magically become more secure when the partial source code was leaked on the net? No. But I bet you a lot of malware authors downloaded the code to look for exploit opportunities.
  • by cooleric1234 ( 916941 ) on Thursday October 20, 2005 @08:25AM (#13834647)
    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, or whatever it's called. They said that I could get a huge fine for releasing it myself and they had to pick it up. Maybe that's a bad example because I found out what the law was but the point is that we probably all break the law in ways that we're not aware of.
  • by cluckshot ( 658931 ) on Thursday October 20, 2005 @08:36AM (#13834703)

    Mod the parent of this post up! He deserves a 5. The trust us mentality of the government bureaucrats has cost the freedom of many and the lives of others. Distrust of the government is the right and moral obligation of every citizen, because it is all that keeps tyrrany in check. With Hurricane Katrina the bureaucrats wouldn't let the citizens boats in for rescue efforts and hundreds died awaiting a helicopter. The boats were turned back because the drivers were not "qualified" by FEMA. Should we trust this sort of behavior? Yes, we can trust it to kill us.

    In the justice the issue of fact presented in court is the whole issue. You must be able to try the "witness". This is why "rape shield laws" really protect the criminal from prosecution. They prevent trying the witness and thus we must either take the claim on faith or forget it. The inability to try a witness in technical evidence is to give the state an assured conviction without a trial. One may as well install a vending machine for justice. With modern computers the taking of their output as evidence is and act of extreme faith. One must trust the input, trust the process and trust the custody of the whole system including documents which are virtual in the first place. Video evidence for example may appear totally intact, but with modern edit technology it can be a computer induced hallucination.

    I want DUI's locked up! But I don't want officers running a vending machine for justice either. The more computer dependent these machines become, the more certain the tests they presume to do can be faked, altered or be just plain wrong and to test the programming becomes as important as asking the arresting officer questions. Educated Jurors must keep this stuff in mind.

    The state pays officers and prosecutors to get convictions. They will unemploy one who loses often. There is a high incentive to fake and change evidence. The state has found it very cheap to hire very simple minded officers and load them with gadgets designed for the purpose of conviction. It makes money for the state and makes officials look like they are doing their job.

    In England something like 800,000 traffic cameras exist. They got fabulous photos of terrorists doing their damage, but nothing could be done to stop them before hand. This because nobody was really watching. Cameras you see lack the ability to suspect (Probable Cause). The effect of these cameras has been an increase in crime and danger. This because the officers are no longer actually doing their job. We have to change this thinking that the machine is right. It exists to avoid being right.

  • by cayenne8 ( 626475 ) on Thursday October 20, 2005 @09:29AM (#13835070) Homepage Journal
    "Trust us he's guilty, but the method we used to determine that is a trade secret"

    I was talking to a lawyer the other day (New Orleans) asking exactly what to do if you got pulled over and you'd been drinking. He said, if you know you're over the limit...just don't say a word, don't do any field tests because at this point it is nothing more than them collecting evidence. Just put your hands out, and let them put the cuffs on. You're going to jail regardless. So, don't blow, don't walk the line or touch your nose...don't give them ANY evidence against you. At the worst, you may lose your license for awhile, and get a Reckless Driving charge...but, it won't be a DWI. And, even with loss of license...you can generally get a permit to drive to/from work, groceries...etc.

    So...I guess the thing is..don't let them use any device on you regardless if it is Open Source or not.

  • Louisiana (Score:3, Interesting)

    by TamMan2000 ( 578899 ) on Thursday October 20, 2005 @11:22AM (#13836202) Journal
    Is that only in Louisiana? I thought most states had laws on the book which stated that refusing to take the test was legally equivilant to blowing above the limit, and would get you a DWI.

    I lived in Louisiana when I was young, it is a strange state... There was a drive through bar less than a mile from my family's house in suburban Shreveport. One of the 'things to do' was to get a 'go cup' and cruise the streets. I heard they have an open container law now though...

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