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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 Kohath (38547) on Thursday August 09, 2007 @05:25PM (#20175139)
    grep it for "Boris Yeltsin"
  • by networkBoy (774728) on Thursday August 09, 2007 @05:26PM (#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
    • Re: (Score:3, Funny)

      by Icarus1919 (802533)
      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.
      • by Shakrai (717556) on Friday August 10, 2007 @07:42AM (#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 cayenne8 (626475) on Thursday August 09, 2007 @06:00PM (#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.

      • It's the truth. 0.08 is below any significant level of impairment under normal driving conditions, and police fail a consistent 50-75% of people on sobriety tests when 100% are sober.
        • by Idarubicin (579475) <allsquiet@@@hotmail...com> on Thursday August 09, 2007 @10:09PM (#20177989) Journal

          It's the truth. 0.08 is below any significant level of impairment under normal driving conditions....

          First of all, you need to cite some sort of source for a statement like that. (A review by Fell and Voas [nih.gov] reports that reducing the legal limit from 0.10 to 0.08 reduced alcohol-related crashes, injuries, and fatalities by between 5% and 16% in the United States; they report further statistically significant reductions in fatalities in jurisdictions that have moved to a limit of 0.05.)

          Second - as other posters have noted - how prepared are you to deal with a surprise abnormal condition?

          Third, nice weasel word--below any 'significant' level of impairment? What does that mean?

          Fourth, I should hope that the limit would be below the level of significant impairment under any condition. There's no compelling reason why anyone should have to drive with any alcohol in their blood; any limit ought sensibly to include a margin of safety.

      • by clem (5683) on Thursday August 09, 2007 @06:53PM (#20176323) Homepage
        ...you'll probably get hit with wreckless driving....

        Yeah, I once had wreckless driving put on my record. My insurance premiums blew through the cellar.
      • by thesandtiger (819476) on Thursday August 09, 2007 @07:35PM (#20176783)
        I've got an idea... Why not just, like, not get behind the wheel of a car if you've been drinking? Strikes me as a better idea than trying to game the system after you've been pulled over.

        I'd say dealing with the inconvenience of finding another way home is much better than being potentially responsible for crippling another human being. Then again, what do I know? I'm not a self-centered asshole who thinks she has a right to get behind the wheel of a 2 ton machine after doing Jell-O shots. 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.

        My best friend on the planet has a non-functional right leg thanks to some guy who was convinced he was fine to drive. After helping her through getting her life back together over the course of years since her accident, I'd be just fine if they threw drunk drivers in jail and told their cellmates that they were child molesters.
        • Re: (Score:3, Insightful)

          by syousef (465911)
          After helping her through getting her life back together over the course of years since her accident, I'd be just fine if they threw drunk drivers in jail and told their cellmates that they were child molesters. ...which is why I'm glad you're not making the laws. Your anger isn't something to display proudly. Emmotion isn't a good basis for punishment (or law in general). It's not going to get your friend's leg back or take away the pain she's suffered or continues to suffer.

          I hope you're just venting, bec
          • Re: (Score:3, Informative)

            by Eivind (15695)
            Actually, punishments are for 3 reasons. But you're rigth, none of them are for "revenge" or "anger".

            First, as you say, locking someone away obviously protects the rest of society from the consequences of their actions for the duration they're locked down. If this was the only concern though, all punishments would be jail forever, which ain't the case.

            Secondly, we hope that being punished for a certain action, makes you less likely to do it again. For many notorious criminals this is quite doubtful, for oth
        • Never say never (Score:5, Interesting)

          by CamoCoatJoe (972244) <gijobarts@gmai l . com> on Friday August 10, 2007 @02:31AM (#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: (Score:3, Informative)

        by spikedvodka (188722)
        Check your driver's license... and the local laws. for example:
        Florida's Driver's Licenses states right on the front "Operation of a motor vehicle constitutes consent to any sobriety test required by law"

        Maine law is that "Under Implied Consent, you automatically agree to a chemical test (blood, breath, or urine) at any time authorities have probable cause to administer it. If you refuse to take such a test for alcohol or drugs, your driver's license will be immediately suspended. The suspension could be
    • by megaditto (982598)
      Nuclear warhead blueprints are owned by the State too...

      1) Get in touch with Bin Laden
      2) ...
      3) Prophet!
  • Sigh (Score:2, Insightful)

    by WeAzElMaN (667859)
    What a bitch. Just take the punishment - no matter how sober you think you are, those things are damn near never wrong. If it's above .08, just pony up for the fines already...
    • Re:Sigh (Score:5, Insightful)

      by vux984 (928602) on Thursday August 09, 2007 @05:31PM (#20175231)
      On the other hand, what if he finds a bug? I'd let this guy off the hook in exchange for improving the software so that it works better in the future. And if he can't find a bug, he still gets convicted.

      Really this seems like a win-win for everyone involved.
      • Re:Sigh (Score:5, Insightful)

        by SeanTobin (138474) * <byrdhuntr@hotm a i l .com> on Thursday August 09, 2007 @05:37PM (#20175303)

        On the other hand, what if he finds a bug?
        That's exactly what the state is worried about. If he does find a bug and is acquitted, suddenly every DUI conviction using data provided this device has to be thrown out. The state doesn't really care about releasing the source code, it cares about maintaining the convictions.
        • Re: (Score:3, Insightful)

          by MightyMartian (840721)
          Which is precisely why the diminution of old-fashioned sobriety tests in favor of technology is a bad thing. In the olden days, if you stank of liquor and were driving erratically, that was often enough to get your ass kicked. The cops, however, are an incredibly lazy bunch who just want a magic blackbox that's absolutely right. Now they're being faced with the dangers of that argument. If this breathalyzer is hokey, then it's not the defendant's fault, but the fault of the manufacturer and a lazy-ass g
        • Re:Sigh (Score:5, Insightful)

          by vux984 (928602) on Thursday August 09, 2007 @06:06PM (#20175675)
          That's exactly what the state is worried about. If he does find a bug and is acquitted, suddenly every DUI conviction using data provided this device has to be thrown out. The state doesn't really care about releasing the source code, it cares about maintaining the convictions.

          If they were convicted by evidence from defective equipment, it SHOULD be thrown out. That is a founding principle of our system of justice. We as a society prefer that the guilty walk rather than imprison the innocent; or at least we as a society used to think that... and I still do... but I don't think I speak for society anymore. :(

          That said, even I don't think a found bug should be an automatic acquittal. After all it could be reading lower than it should have been! But yeah, if they find a bug that caused it to read double the actual amount under various circumstances then I would have no qualms about throwing out any DUI convictions it caused.

      • by kaiser423 (828989)
        There are many reasons why breathalizers can be inaccurate. They rely on a large set of assumptions -- things like your diet, and your mood can cause errors.

        Breathalizers should never have been used as a tool to convict. There's some new technology that uses a subcutaneous laser to actually measure the concentration in your blood -- that would give you a true BAC without having to stack up a number of assumptions like the breathalizer has to.
    • by Nephilium (684559)

      Actually... the breathalyzer can very easily be wrong... it takes an extremely small sample size, then extrapolates up from that. Look into some of the known science of it... if a speck of spittle gets into the device, it will push your measured BAC up much higher then it actually is. The science behind it is already questionable, and the courts have not allowed a case on the scientific basis of the device.

      Nephilium

    • by nystul555 (579614)
      Actually the accuracy of breathalyzers is a topic of some debate. At least 23% of all individuals tested will have a BAC reading higher than their actual BAC. [potsdam.edu] According to wikipedia [wikipedia.org] many factors including temperature, the persons breathing pattern, and if the device has been recently recalibrated or not can affect the results - so much so that some states don't allow breathalyzer results in court (they require blood tests)
    • Re: (Score:3, Interesting)

      by Alchemar (720449)
      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 intoxi
    • Re: (Score:3, Informative)

      by futuresheep (531366)
      no matter how sober you think you are, those things are damn near never wrong.

      Read this before you think you can be sure about that. They can be wrong, especially the older ones.

      Link [wikipedia.org]

      Or the the machines may not have been tested properly:

      Link [nwsource.com]

    • Re:Sigh (Score:5, Interesting)

      by ProfBooty (172603) on Thursday August 09, 2007 @06:50PM (#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.

  • It's not like you can cheat the device when you saw the source.
    • by swb (14022)
      I'm sure the DPS' Campion is concerned that should the defendant find some reason to cast doubt on the validity of the results, the state could find itself having hundreds or possibly thousands of current cases thrown out and many times that many convictions vacated.

      I think it also goes along with general cop/police state mindset where you don't want to give away anything, especially something like DUI automatic conviction machines.
  • SCO? (Score:4, Funny)

    by Goody (23843) on Thursday August 09, 2007 @05:28PM (#20175191) Journal
    Does the defendant work for SCO?
  • The source code? (Score:3, Interesting)

    by Anonymous Crowhead (577505) on Thursday August 09, 2007 @05:29PM (#20175199)
    How about the hardware schematics? You'd think he'd need those even more. He's just being an ass.
  • by fyrie (604735) on Thursday August 09, 2007 @05:29PM (#20175201)

    10 print "U R DRUNK!!!"
    20 GOTO 10
  • by erroneus (253617) on Thursday August 09, 2007 @05:29PM (#20175207) Homepage
    ...if they completely refused the defense access to the source code. There's more reasonable doubt to be had when there are "ominous secrets" from which to draw doubt. But now their only hope is to find reasonable doubt in the form of bugs in the source... a lot less likely.
    • by Otter (3800)
      I'd guess that that was his plan all along, that as with the previous cases the company wouldn't provide the source code. He can still look for some lack of bounds checking or what-have-you, or find a GOTO and bring in one of the experts from here to explain how GOTOs make your code magically not work.

      No way is there a meaningful bug. Those things are calibrated constantly and someone would have noticed it. Unless he got pulled over at midnight on January 1, 2000 or something like that.

      • Re: (Score:3, Insightful)

        by NormalVisual (565491)
        There may not be a bug per se in the code, but examination of the source will very clearly reveal the exact set of assumptions the machine uses in order to produce a reading, and those assumptions may very well invalidate the state's case.
    • Re: (Score:3, Insightful)

      by Hatta (162192)
      But now their only hope is to find reasonable doubt in the form of bugs in the source.

      That's not true. Even if the source is 100% bug free, the assumptions [1800duilaws.com] they use to model the physical systems in question may be in error. Breathalyzers are good at measuring alcohol content in air, extrapolating that to alcohol content in blood is a tricky business since no two people are exactly the same.
  • Owner (Score:5, Insightful)

    by Intron (870560) on Thursday August 09, 2007 @05:30PM (#20175219)
    The code is owned by the company that makes the equipment. So what? Information which matters in a court case gets subpoenaed all the time. What makes software any different then private mail, bank account records, or anything else?
    • Re: (Score:3, Funny)

      by blackicye (760472)

      The code is owned by the company that makes the equipment. So what? Information which matters in a court case gets subpoenaed all the time. What makes software any different then private mail, bank account records, or anything else?


      Hmmmm..I think you're on to something!

      1) Perform incriminating act involving proprietary device.
      2) Get Caught.
      3) Demand Source Code to said device.
      4) ???
      5) Profit?

      err or something like that
      • by RingDev (879105)
        That Step 4) is a gag order. And you left out Step 6) where the owning company sues you for all of the profits in Step 5).

        -Rick
      • by Bamafan77 (565893) *

        1) Perform incriminating act involving proprietary device.

        2) Get Caught.

        3) Demand Source Code to said device.

        4) ???

        5) Profit?

        heh, exactly. Asking for the calibration records was the old way of getting out of speeding tickets, but now we can ask for both calibration records AND the source. And since NO software source is bug free, I predict an end to prosecutable crimes where the evidence is machine-based.
        I wonder if I could setup a business with a lawyer where all I do is find bugs in software use

  • by microbee (682094) on Thursday August 09, 2007 @05:34PM (#20175269)
    (his attorney, Jeffrey Sheridan, as saying) the source code was necessary because otherwise "for all we know, it's a random number generator."
    • The toxylizer that was used to mark him needs to be confiscated and reverse-engineered to see if the code running on it, is effectively produced by the source code in question (It could be modded, youknow). If it can't be found, then we can safely assume that the evidence has been altered.
      Voila, reasonable doubt.
      • by Animaether (411575) on Thursday August 09, 2007 @05:54PM (#20175509) Journal
        is two terms... what part makes it "reasonable"?

        Don't get me wrong, but if "the possibility, however remote, that a device, at the time at which it was used, did not operate according to specification" makes for 'reasonable doubt', then you would never see another speeding ticket, DUI ticket, etc.

        Back on-topic.. don't people who get caught with a breathalyzer (is what they're more known as over here) get taken to the station for a more thorough and accurate, possibly blood, test to determine the blood alcohol level, before going through the steps of fining? As far as I know, the breathalyzers for that exact reason are set up to be moderately lax, as false positives would just be a giant waste of time + money on both the part of the government -and- the person who got tested, causing collateral damages everywhere.
        • Re: (Score:2, Informative)

          by Anonymous Coward

          Back on-topic.. don't people who get caught with a breathalyzer (is what they're more known as over here) get taken to the station for a more thorough and accurate, possibly blood, test to determine the blood alcohol level, before going through the steps of fining?

          no, not at all. as a matter of fact, quite the opposite. in most states you will never be informed that you can in fact have a blood sample taken. you will blow on a machine like this and that will be all she wrote for you. had i know thi

          • Re: (Score:3, Informative)

            by Grym (725290) *

            let me finish with this. for all of you that don't know, the breathalyzers dont tell you your blood alcohol content, they tell you your BREATH alcohol content. this number is then multiplied by some outrageous number like 1200, and thats how they estimate your blood alcohol content. this is why many people that dont fit the 'average' in terms of body mass are often falsely convicted.

            Actually, it's more complicated than that. Most of the breathalyzer machines actually measure the absorption of light sent

      • Re: (Score:3, Insightful)

        by Vellmont (569020)

        The toxylizer that was used to mark him needs to be confiscated and reverse-engineered to see if the code running on it, is effectively produced by the source code in question


        Nonsense. You could take your argument to the next level and say there's something different about the hardware in the machine. Black-box testing of this thing should prove that it works (and ultimately is a better test than looking at source code).

        I can't believe this thing is all that complicated as far as inputs go (like a guy blo
        • Re: (Score:3, Insightful)

          by RingDev (879105)
          Agreed, the outcome of the case itself is petty. Provided the breathalyser is functioning correctly (easy enough to test with a simple double blind survey with a number of devices of the same function). But it would be nice to see a precedence set that affirms the right of a person to review the code of a digital object being used to "testify" against them.

          And in the over all "good" side of this argument, more eyes can make better software. Even if this guy gets off with nothing due to the source, it can on
  • Language? (Score:5, Funny)

    by Bazman (4849) on Thursday August 09, 2007 @05:34PM (#20175271) Journal
    What's it written in? Double Visional Basic? Lishp?

    Brainf**k maybe...

  • 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 neapolitan (1100101) on Thursday August 09, 2007 @06:16PM (#20175803)
      A low-carb diet (e.g. Atkins diet) can indeed make you "ketotic" and raise your breath acetone level.

      From your college chemistry course acetone has a C=O bond, while alcohol is a C-OH bond.

      Cheap breathalyzers will use a chemical reaction to detect the alcohol in your breath -- often potassium dichromate (these are the ones that go from red to green with alcohol).

      More advanced models (such as the ones the police would use, would use essentially spectroscopy to try to measure the resonant absorbance of the C-OH bond. This would not be fooled by acetone, which has a much different absorbance of the C=O (approximately 1700 cm-1 IIRC). There are also variants of this method.

      If you are ever innocent and accused, get a blood test, which really is a quantitative direct measurement and can be confirmed, with very little chance of being fooled.

      If you are not innocent, **IN THEORY** the easiest way to lower your reading is to silently hyperventilate prior to blowing. This would prevent equilibration of the alcohol in your bloodstream with the air in your lungs that you just breathed in and out. It is far from perfect, and I would strongly advise to never drive drunk, nor rely on this method.

      Additional references: http://wiki.answers.com/Q/Could_elevated_ketone_le vels_produce_inaccurate_Breathalyzer_results [answers.com]
  • Maybe the state is afraid somebody will be able to determine a consumable that will defeat the device. Maybe the state is already aware of such a thing and doesn't want it public.


    If all breathalyzers work in the same manner it would throw DUI law enforcement for a loop.

  • by grolschie (610666) on Thursday August 09, 2007 @05:50PM (#20175467)
    C'mon. We shouldn't rely on such devices as evidence anyway. IMO devices are useful for detection, but not conclusive. In my country electronic devices are used to detect alcamahol all the time, but these are not used as evidence. The defendant must immediately give a blood sample - or be prosecuted for not supplying blood.

    When early electronic breathalizers first came out here years ago they either didn't detect the alcohol at all, or they false alarmed by detecting toothpaste and aftershave. The blood test is conclusive. Why should we trust these new tech devices? I mean people here successfully challenged the accuracy of speedcameras and other such devices. We want to be sure.
  • Additional info (Score:3, Informative)

    by y2imm (700704) on Thursday August 09, 2007 @05:54PM (#20175513)
    "Wetzel was arrested at his home on Feb. 25 after allegedly rear-ending a car with his pickup truck and then driving off. He faces five gross misdemeanor charges, including causing bodily harm and driving while intoxicated." FREDERICK MELO Pioneer Press

  • To get drunk, get caught, demand the breathalyser source, so he can rip off it and create his own competing product! Muhaha! It's genius!
  • by Sloppy (14984) on Thursday August 09, 2007 @05:58PM (#20175561) Homepage Journal

    ..has nothing to do with this case, and little to do with who holds the copyright. What if he does find flaws, and others have already been convicted using output from the same machine? Suddenly, all those past cases come back up.

    I guess the lesson here is: 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").

    Keep mysteries out of court, from the start. Don't let a big list of convictions that depend on them, build up. The chances of the device being defective are probably pretty low, but you know there's gotta be some prosecutors with pits in their stomachs.

  • by Uksi (68751) on Thursday August 09, 2007 @06:22PM (#20175929) Homepage
    We need responsibility in DUI Laws [www.ridl.us]. Drunk driving is a terrible problem, but the way the states are dealing with it is not good. The BAC limits have been creeping ever so lower, as to raise the revenue from someone having a glass of wine after dinner when stopped at a roadblock. This is not actually helpful in impacting road safety.

    Also, breathalyzers have a +/- 20% error [duiblog.com], which is rather unfortunate.

    Ignition interlocks have a .02 BAC margin of error, so they are set to legal_limit - 0.02, so in a 0.05BAC state, they are set to 0.03. Go on a date and take the girl home on a bus. This is why you should not support mandatory ignition interlocks.

    We need to deal with the drunk driving problem responsibly: provide good public transportation options (Boston, extend trains until after 2am, you listening?), encourage designated drivers, and provide massive roaming police enforcement, looking for erratic driving and dangerous behavior (substantially more effective [abionline.org] than roadblocks).
  • by nate nice (672391) on Thursday August 09, 2007 @06:23PM (#20175959) Journal
    We're already seeing a ton of people with absolutely no legal background commenting on legal things. Here's a tip: the law doesn't work like you probably think it does. The law is rational or reasonable. It's a jumbled mess of subjective orders and expressions that lawyers can mold into defense or complaint.

    Looking at the source code could very well be the basis for a very solid defense that beats whatever state statues and ordinances the defendant is suspected of violating. We have no idea what's in the code so why not? Crappy programmers probably wrote the software and it probably wouldn't be hard to find something that doesn't function right or doesn't map just right to a state issued requirement for the system.

    If this gun reading is the states main piece of leverage it's because this device conforms to some strict requirements defined by the state. So maybe looking at the code will show that it doesn't and that the machine is in fact illegal.

    Lastly, if you ever get pulled over for something like this, don't talk. That is when they ask if you've been drinking, always say no. What does "drinking" mean? Well, it's not up to you to define this at that time. Let your lawyer handle it. Never tell a cop you might be breaking the law. Because once you've admitted that you have been drinking, they can ask you a whole bunch of other questions that can only hurt you. How much? For how long? Where at? Where are you going? With who?

    Here's a sample:

    Officer: Have you been drinking?

    You: No.

    Officer: I smell alcohol.

    You: I haven't been drinking, officer.

    He'll still ask you to get out and do his little tests. But you've never admitted to anything. This can help a lot down the road. In short, never say anything you don't have to.
  • by Anonymous Coward on Thursday August 09, 2007 @06:38PM (#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.
    • Re: (Score:3, Insightful)

      by Lumpy (12016)
      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."

      Answer: have judge Fine the comapny $10,000.00 a day until they relesae the source code to the court. The company is clearly in contempt of the court. I would go as far as issuing a warrant for the CEO's arrest for contempt as well.

      That would probably get you the source code within 5 days.
  • by Nonillion (266505) on Thursday August 09, 2007 @06:44PM (#20176195)
    As someone who has been railroaded through the DUI "presumption of guilt" gulag, I had mentioned this to my attorney. However, I didn't have the money to pay a software engineer (code monkey) to grep the code looking for flaws. When I blew into the machine it printed out the results along with the last firmware update done in 1999! I had questioned the reliability of the results but the state just blew it off and said they were satisfied the results were forensically accurate.

    As far as the DOL is concerned, you are GUILTY based on some arbitrary number the machine spits out. Your right to "due process" is bypassed at that point, a person who works for the DOL then becomes prosecutor and judge and inevitably suspends your license. When you have little or no money, you just flat out get fucked in the ass with a un-lubricated utility pole. DUI law today has NOTHING to do with curbing drunk driving, it has everything to with nothing but raking in revenue. duiblog [duiblog.com]
  • by evanbd (210358) on Thursday August 09, 2007 @06:46PM (#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.

  • by belunar (413142) on Thursday August 09, 2007 @07:00PM (#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

     
  • by earthforce_1 (454968) <earthforce_1@yah[ ]com ['oo.' in gap]> on Thursday August 09, 2007 @07:18PM (#20176615) Journal
    Almost everybody here knows the issues involved with closed source e-voting machines. How is this any different? It should be a fundamental right that you or your attorney should have access to any and all evidence used against you, which in this case includes schematics and source code of the device in question. Think about it - is it really any different to say that candidate X won the election because the magic black box said so, versus you being convicted of something because the magic black box said you are guilty - never mind how it works?

    BTW, I develop embedded systems software for a living, I have run across strange and subtle bugs before, and I have no objection to having somebody reviewing my work for correctness.

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