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.
Re:A cleaver ploy or honest defense? (Score:3, Interesting)
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.
Re:Should all government software be open source? (Score:4, Interesting)
jf
Re:Should be more than just source code (Score:5, Interesting)
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.
Re:Should all government software be open source? (Score:4, Interesting)
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)
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.
Re:Should be more than just source code (Score:5, Interesting)
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)
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)
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.
Re:Even if it had been tested... (Score:5, Interesting)
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 )
This use to be the case in Pharmacuticals (Score:2, Interesting)
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
Re:Should be more than just source code (Score:2, Interesting)
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?
Re:Should be more than just source code (Score:3, Interesting)
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.
Re:A cleaver ploy or honest defense? (Score:2, Interesting)
Re:Should all government software be open source? (Score:4, Interesting)
Why not? Or do you believe in the FUD that closed software is inherently more secure?
Re:Sorry But (Score:2, Interesting)
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)
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)
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.
Re:Should all government software be open source? (Score:3, Interesting)
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.
Re:Should all government software be open source? (Score:3, Interesting)
Re:Should all government software be open source? (Score:5, Interesting)
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.
Re:Should all government software be open source? (Score:3, Interesting)
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)
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...