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DUI Defendant Wins Source Code to Breathalyzer 638

Posted by Zonk
from the one-way-to-fight-the-man dept.
MyrddinBach writes "CNet's Police Blotter column looks into a Minnesota drunk driving defendant case with a twist. The defendant says he needs the source code to the Intoxilyzer 5000EN to fight the charges in court. Apparently the company has agreed to turn over the code to the defense. 'A judge granted the defendant's request, but Michael Campion, Minnesota's commissioner in charge of public safety, opposed it. Minnesota quickly asked an appeals court to intervene, which it declined to do. Then the state appealed a second time. What became central to the dispute was whether the source code was owned by the state or CMI, the maker of the Intoxilyzer.'"
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DUI Defendant Wins Source Code to Breathalyzer

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  • by networkBoy (774728) on Thursday August 09, 2007 @04:26PM (#20175159) Homepage Journal
    If it's owned by the state isn't it public domain?
    Thus if the state's call to block it was predicated on their claim to ownership, it would fall through.
    -nB
  • The source code? (Score:3, Interesting)

    by Anonymous Crowhead (577505) on Thursday August 09, 2007 @04:29PM (#20175199)
    How about the hardware schematics? You'd think he'd need those even more. He's just being an ass.
  • Wow.... (Score:1, Interesting)

    by GodCandy (1132301) on Thursday August 09, 2007 @04:30PM (#20175221)
    Not to question his motives in this case but what the hell do you need the source code for a breathalizer for.

    if ($input > $limit)
    {
    execute(arrest);
    }
    else
    {
    execute(warning);
    }

    I guess maybe there is more to it but does he really think he is going to get his case dismissed because he finds a unrelated flaw in the code.
  • Why bother? (Score:1, Interesting)

    by Anonymous Coward on Thursday August 09, 2007 @04:35PM (#20175283)
    Now, I understand that it is just default to keep source code for no good reason, and it also seems like the default for the state to fight defense evidence gathering even though that is wholly unethical, but this seems ridiculous. If he thinks he's going to prove something, let him try. Fighting it makes it look like he will, which means you'll just look stupid when he doesn't. Because he can't, because that makes no fucking sense.

    I mean seriously, what the fuck is the source code going to show? There is not going to be shit in there for intentional false positives. There wouldn't be any reason for that on the part of the maker. I also don't see how there could be accidental false positives related to the source as opposed to mechanical failure. I mean, it's a simple num>X check. He probably thinks he can technobabble his way out of it, but that shit is not going to work. There's a chance it could fool the average /. editor of course, but it's not going to fly in the court, and the prosecution is going to look retarded for trying to stop him.
  • Before you hang the guy, perhaps we should consider he may be on a low-carbohydrate diet and the unit fails to distinguish acetone from alcohol.

    Just four months ago a Virgin Atlantic pilot was arrested and taken off the aircraft he was the pilot of for a flight from Heathrow to JFK. Several days later, all charges were dropped when the results of the blood tests proved him innocent.


    Pilot arrested on drink charge [bbc.co.uk]

    Diet clears drinking-arrest pilot [bbc.co.uk]
  • by cayenne8 (626475) on Thursday August 09, 2007 @05:00PM (#20175599) Homepage Journal
    Well, you're supposed to be able to confront the evidence and witness against you. Since a machine is being used as evidence against you...you should be able to study what makes it tick for your defense.

    I've said it before tho...and this does differ in many states, but, if I got pulled over, and knew I'd blow more than the ridiculously low 0.08, I'd do what a lawyer told me. Not say a word, not take any field tests, just hold my hands out for the cuffs and refuse to take any tests. All those field tests do is allow them to collect evidence on you on camera. With no evidence...they can't prove you were intoxicated. In many places, yes, you'll lose your license for a year...you'll probably get hit with wreckless driving....but, you won't get a DWI on your record which can nowdays hurt you on job applications, credit...and certainly your insurance.

    If you're drunk...you are going to jail...but, you don't need to help them collect evidence against you.

  • Re:Sigh (Score:3, Interesting)

    by Alchemar (720449) on Thursday August 09, 2007 @05:01PM (#20175607)
    Most states have a law that states a BAC. A breathalyzer estimates your BAC based on the light absorbtion to determine the amount of alchol in your breath. The amount of alchol in your breath is an estimate of your BAC based on an everage person's metabolism. The source could is the only way to tell how they correlate the measured amount of light absorbtion to the estimated BAC of that specific person. Breathalyzers were intended to be a quick way of determining if someone was suspected of being intoxicated. Think about the revenue that is gained for the departments that have made the decision to use a breatalyzer as the defacto standard instead of running an actual BAC test from a blood sample before accepting that their decision was based on the accuracy of the measurement.

    This is before factoring in that many organic compounds contain an alchol group that will absorb the same light spectrum. There have been cases of people reading over the limit that have witnesses to confirm that they were not drinking. The one that always comes to mind first, is the person that did fire breathing for a living. The lighter fluid that he used spiked the detector. This was only on his breath, it would have made him sick if he drank enough to raise his BAC, but they refused to draw an actual blood sample for testing. I have also had police officers tell me to always refuse the breathalyzer because they are not accurate. The fine and penalties for refusing are nothing compared to a false posative.

    Would you please give some insite on why you have determined that these machines are accurate enough to ruin someones life without giving them the chance to even verify that there was not an error made in the mathmatical conversion or even a software bug? Do you even understand the full consequences of "just take the punishment" A DWI is one of the most serious offenses you can be convicted of. Would you expect someone that killed someone in self defense to just take the murder wrap instead of using evidenance that they were being attacked to prove it was self defense? The mere fact that this person is now in a position that he has to prove his innocence based on what a machine said should grant him the right to all evidence that might prove him innocent.
  • Re:What about (Score:4, Interesting)

    by digerata (516939) on Thursday August 09, 2007 @05:18PM (#20175839) Homepage

    The problem with your argument is this.

    The people who are killing or injuring or severely maiming others are not people who had two beers and hopped in a car to go home. It's being done by the people that HAVE a PROBLEM and are downing a case of beer and covering one eye to make it to the next bar.

    Lowering the legal limit from .1 to .08 and further down to .06 or whatever DOES NOT SOLVE ANY PROBLEM. The difference in human beings with a BAC of .06 and .08 is impossible to distinguish and measure. All it does is increase government revenue and keep good people down.

    This country needs to come to grips with is that Americans DRINK. Drinking is a part of our society and is not going away. The problem that everyone keeps overlooking is that there is no way to evaluate how intoxicated you are and if you are beyond the legal limit, there IS NO WAY TO GET HOME!

    I tell you what, if I KNEW that I was at .09 right before I hopped into my car, I wouldn't drive. I would wait 15 minutes. But how the hell do I know that because there are no consumer devices that accurately tell me and there is nothing at drinking establishments that tell me. I went to a bar in Windsor, Ontario and was blown away by the greatest invention. They had a freakin 25 cent breathalyzer that told you exactly how drunk you were! That's BRILLIANT!

    Furthermore, if you live in a city with public transportation, you are fine. But what happens if you live in an urban area, where there is no reliable or cost effective transportation. I invite anyone to come to the Detroit Metro area and try and find a cab ride home. You are going to pay 30 - 50 dollars. Forget about the bus. Forget about the train.

    Sure, if you live in downtown New York, this argument doesn't hold water. But how many drunk driving accidents do you have in New York? I wonder how much of that is due to the subway system? Hmm....

    So what are doing with all the extra cash we get from persecuting people who had one beer too many? Certainly not building up our infrastructure to SOLVE THE PROBLEM.

  • by HomelessInLaJolla (1026842) * <lajollahomeless@hotmail.com> on Thursday August 09, 2007 @05:21PM (#20175907) Homepage Journal
    You've presented a horribly simplified edition of the actual science which lends itself to dismissing the issue. While acetone itself will not produce a false positive, the presence of acetone in the test will artificially inflate any reading which is picked up from any alcohol. So, for example, if you had one beer and are hyperketotic, it will look like you had six beers. If you had no beers, but the arresting officer coats the intake tube with a little bit of non-acetone fingernail polish remover, you're now over the legal limit.

    Have you ever seen the ~3000 cm^(-1) peak on an IR instrument? It's a _HILL_. It's not a single line peak. The size of that hill is known to chemists to vary based on ambient temperature, humidity, air composition (high/low oxygen/nitrogen/CO2), concentration of the sample, and even, when all of those factors are well-controlled, variances from one experiment to the next are still observed.
  • by BUL2294 (1081735) on Thursday August 09, 2007 @05:26PM (#20175981)

    [...] The source should already have been public and heavily scrutinized. I don't want my government spending my tax money and wasting time in court, to get convictions based on evidence from mysterious unaudited machines. Why? Because sooner or later, some defendant is going to want the mystery peeled back. Some defendant is eventually going to want a fair trial. Might as well give that fair trial to the first one, so that a bunch of expensive shit doesn't have to get re-done (or so that a bunch of guilty people don't end up walking free, simply because the cops used a defective machine that ended up collecting untrustworthy "evidence").
    You know, I was thinking the same thing. Chicago recently put up red-light cameras where if you violate, you get a ticket in the mail. But before I get burned, I was thinking of filing a Freedom of Information Act request to get the source code and/or the "version info"/bugfix list, along with the version info for every red-light camera in the city--and info on how the computer operating systems & how they are networked. (Please don't say they run XP and are networked using the Internet in some way!!!) I've seen other peoples' tickets and the picture always includes the software version number on top. What if I knew that particular version had a bug where one camera snaps the picture 1 second before the others do (or something like that)??? Now, I have even more reason to ask for the source code!
  • by Anonymous Coward on Thursday August 09, 2007 @05:38PM (#20176127)
    I work as a law clerk for a judge in Minnesota, and have written opinions regarding this very matter. Luckily, my judge agrees with me that people's liberty's should not be dependent on the financial interests of private businesses, and we have forced the state to disclose the source code when we get the motions. Of course, the state has not yet done so. As the Asst. Attorney General said in court just a couple days ago, "CMI simply will not give the source code to us. We're supposed to own it, but they just won't give it to us. I'm not sure what to do at this point."

    This will probably lead to hundreds of implied consent motions being decided in favor of the driver (which means he gets his license back, and doesn't relate to the criminal charges) and it remains to be seen how courts will hold in criminal matters, but I'm guessing many of them will follow the Underdahl court in forcing the state to disclose it.

    As I've explained to my judge: essentially, states needs to learn that it is a very bad idea to sign contracts to acquire closed source devices to which they will have no access or ability to test. The same goes for voting machines.

    Personally, I'm VERY conservative when it comes to DUI cases, and I very, very rarely side with the driver. But in this case, I've decided it's worth it to throw out a few of them if it means fixing "the system", not just for the intoxilyzer code, but for more important things like the voting machines.

    On another note, I'll be writing a more thorough order requiring the use of the source code, and as one of the few law clerks around that has a CS degree, it'll get used by plenty of other judges. So if anyone has any suggestions on good, succinct public-policy based rationale, I would certainly like to read them.
  • by evanbd (210358) on Thursday August 09, 2007 @05:46PM (#20176237)

    I haven't seen anyone point this out yet, but there is a very interesting piece of information that matters here that he can get from the code. That is the assumptions about the blood-gas partition constant in use. What the machine is measuring is alcohol content in his breath (actually, content of a number of organics, but alcohol is usually the only relevant one). What it is reporting is the alcohol content of his blood. To get from one to the other requires a number of assumptions, most importantly about a number called the blood-gas partition coefficient -- which relates to how much of the alcohol evaporates out of blood in the lungs. The problem is that this number varies significantly from person to person, and even in one person over time. It is entirely possible he has a reasonable argument to make that the machine's assumptions about his partition constant are not correct. IIRC, the constant can ary over a factor of 2, occasionally more. So the question is, how conservative are the assumptions? How well do they match him?

    It's a question of measurement accuracy, not just software bugs, and the software can inform greatly about how the measurement is taken.

  • Re:Sigh (Score:5, Interesting)

    by ProfBooty (172603) on Thursday August 09, 2007 @05:50PM (#20176293)
    Never wrong? BAC and the breathelizer estimate aren't the same thing.

    They have on average a 20% margin of error (a .8 result could actually be a .65 or .96), and make a number of assumptions which may or may not be true:

    lung capacity

    got diabetes, you are far more likely to create acetone which breathilzers may read as alcohol. Further a low blood sugar reaction may produce impairment results outwardly similar to driving drunk.

    physical activty. get the blood pumping right before the test and the levels drop.

    Many breathalyzers assume that the tested individual is an average person and do not take into account sex, height, weight, metabolism and whether that person has just eaten. Furthermore, many breathalyzer tests assume a specific ratio (2100:1) between BAC and breath alcohol content in order to make its conversions. As this actual ratio for a particular individual may vary between 1700:1 and 2400:1, a reading of 0.08 could actually mean a blood alcohol content of between 0.65 and .09. This significant gap could be all the difference in a DUI case since a reading of 0.65 would also require evidence of impairment, often in the form of field sobriety tests.

    Submit evidence that you don't fit to those norms and you may get off. Anyways defendants in drunk driving cases are charged with two offenses: (1) driving under the influence of alcohol and (2) driving with a blood-alcohol level in excess of a given level. They aren't actually charged with poor driving, though it may be a symptom of the impairment. Per http://www.california-drunkdriving.org/alcohol_tol erance.html [california...riving.org] there have been studies showning that alcoholic with BAC levels in the leathal range not showing any signs of impairment. So anyone charged with driving in excess of a level doesn't mean that they are actually impaired.

    Law enforcement tends to charge people with easy crimes, such as speeding or having a high BAC, while ignoring people with truley reckless behaviour: large differentals in speed, failure to signal, aggressive lane changes, and following too closely. I'm not defending those who drive after drinking, but feel it is important to note that the typical way that evidence is collected is flawed.

  • by belunar (413142) on Thursday August 09, 2007 @06:00PM (#20176403)
    When I say this, I know Im not a lawyer. I dont know how accurate my point of view is, this is just my interpretation of what Im seeing of this case.

    Ignoring the reason for the case, drunk driving, Im looking at what they wish to use as evidence. In this case the testing equipment used, IE the breath tester. If a test, breath test, blood test, etc, is to be used in a court case, the equipment used for said teast could also be called into question and itself be on trial. How the equipment is handled or mishandled, manufactured, operates, used, etc, can all be called into question, in whole or part.

    What if this turned out to be a physical component that was in question? Would the state have the same objections to the defence wanting to review the product in question?

    For an example, say this was a car, not a breath tester, that was in question, and this car was known to have a faulty gas tank. Would the state say "No you can not get this information from the manufacturer, becase the state owns that car and it is all ours now." or would they let it through?

    The way I see it, the software a device runs on is just as much a part of said device as a bolt or a battery. If they can give legal reasons for questioning a screw that holds something together, or a gear that turns a part, then they can question the software that runs it also. Copyright does not factor into this at all, which is what the state is trying to say.

    This is not being done to illegaly reproduce the code, this is not being done to copy the work done into another product, this is being done to anaylise its effectiveness, see where bugs are, etc, for a case already in a court of law. If they were trying to copy the code, resell it illegaly, or use it as part of another product, I could see copyright applying. Not in this case.

    Just my point of view in this case.
    Belunar

     
  • Re:What about (Score:4, Interesting)

    by bhiestand (157373) on Thursday August 09, 2007 @09:30PM (#20178101) Journal
    Thank you, actually very insightful, and I knew what you meant. Out here we have a cab service that brings 2 drivers... the second driver drives your vehicle home for you. It doesn't cost that much more than the regular cab ride so it's a great deal.
  • Never say never (Score:5, Interesting)

    by CamoCoatJoe (972244) <gijobartsNO@SPAMgmail.com> on Friday August 10, 2007 @01:31AM (#20179483) Journal

    There's no - ZERO - reason to get behind the wheel of a car after you've been drinking. Ever. If you have somewhere you urgently need to be and can't wait around or sleep it off, then maybe you shouldn't have been drinking in the first place.
    Avoid absolutes. ( Always! :^) ) Case in point:
    My mom was a juror for a drunk driving case. The defendant (who had only came into town that day) met someone who invited him to a party. He went, and after he drank some alcohol, the others there assaulted him. He went outside, but they followed him.
    Being in immediate physical danger, and there not being anyone sober around who wasn't threatening him, he had no choice but to drive.

    Was he foolish? Yes. Criminally so? No. He could not have anticipated the urgent need to drive by himself, and the risk of causing death or injury by driving wasn't nearly as high as the risk would have been if he had stayed and let them pummel him.

    BTW, I've never drunk alcohol and never will, so don't write me off as someone carelessly excusing his own foolish hobbies.
  • Re:Sigh (Score:1, Interesting)

    by Anonymous Coward on Friday August 10, 2007 @03:27AM (#20180039)

    They have on average a 20% margin of error (a .8 result could actually be a .65 or .96)
    Actually one of my childhood friends became a cop, and he tells me that cops are aware of the margin of error with breathilizers and usually won't bother giving you anything other than a warning unless you blow substantially over the limit (kinda like speeding).

    Of course if youre weaving all over the road and look visibly intoxicated, they may charge you even if you blow a .08, but if you are acting fine don't expect much trouble if you blow close or even slightly over the limit.
  • by Shakrai (717556) on Friday August 10, 2007 @06:42AM (#20180933) Journal

    Hey, you wanna take a stroll with me on the lawn of the White House? It's really pretty this time of year. It's public property, ya know.

    You were trying to be funny, but there actually was a time when the White House was more or less open to the public. In the 1800s Presidents would even entertain the public at the White House after they were inaugurated.

    Granted, I'm not sure how feasible that would be in this day and age, but the whole imperial presidency, (large staffs that border on the royal courts of old, the praetorian guard^W^W^Wsecret service, people more loyal to the man then the law, etc, etc) seems to run counter to the ideals of our Republic doesn't it?

  • by Shakrai (717556) on Friday August 10, 2007 @06:56AM (#20181025) Journal

    In the case of drunk driving, most states have adopted the law that if you are driving a vehicle, you have then given consent to submit to the approved test to find out if you're driving under the influence of alcohol. When you are stopped and you're not sure of what your alcohol level is, you cannot refuse to take a breathalyzer test. As soon as you got your drivers license, you gave consent in advance to do this. If you refuse, you will find yourself in bigger trouble than you would have by submitting to the test. This implied consent is automatic in the case of anyone who drives a vehicle. From: http://www.lawcore.com/dui-dwi/what-is-implied-con [lawcore.com] sent.html.

    You will find yourself in bigger trouble if you refuse then if you just take it? I'm sorry, but did you find that on a prosecutor's website or MADD?

    If you refuse the test you are denying them evidence to use against you in a criminal proceeding. You will have to deal with the civil punishment from DMV (typically a suspended license for a period of time and some civil $$$ penalties) but you are denying the state evidence to use against you at a criminal proceeding.

    In most states they can't force you to submit to a chemical test of any kind (breath, urine, blood) except for a few limited sets of circumstances (accident involving injury or death, you previously agreed to the breath test and now they want blood, etc, etc). Yes, you will lose your license for awhile, but they probably won't have enough evidence to convict you of drunk driving. Whereas if you had submitted to the test you will probably be convicted (criminal record) and lose your license anyway.

    Refuse the test unless you are 100% proof-positive that you aren't intoxicated. This doesn't even mean 0.08. In many states they can hit you with lesser charges at 0.05.

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