MN Supreme Court Backs Reasoned Requests For Breathalyzer Source Code

viralMeme writes with news that the Minnesota Supreme Court has upheld the right of drunk-driving defendants to request the source code for the breathalyzer machines used as evidence against them, but only when the defendant provides sufficient arguments to suggest that a review of the code may have an impact on the case. In short: no fishing expeditions. The ruling involves two such requests (PDF), one of which we've been covering for some time. In that case, the defendant, Dale Underdahl simply argued that to challenge the validity of the charges, he had to "go after the testing method itself." The Supreme Court says this was not sufficient. Meanwhile, the other defendant, Timothy Brunner, "submitted a memorandum and nine exhibits to support his request for the source code," which included testimony from a computer science professor about the usefulness of source code in finding voting machine defects, and a report about a similar case in New Jersey where defects were found in the breathalyzer's source code. This was enough for the Supreme Court to acknowledge that an examination of the code could "relate to Brunner's guilt or innocence."

Re:Fishing expeditions

[Bruce Perens]

At times I have been an expert witness. I look at the evidence, and make a reasoned finding which I explain what I think, in terms a layman can apprehend, to the court reporter. If I can't ethically testify in the customer's favor, I tell them so and end the engagement before there is a chance for me to testify.

My cases rarely have much to do with a judge, because civil cases tend to settle. And then get sealed, so you can't see them.

Re:That's how science works

[denttford]

What you seem to miss this is the application of science in law, not science. As a result, the commonly held method of scientific consensus or peer review is not the issue, but rather how American law deals with scientific evidence (and consensus/peer review): Daubert Standard [wikipedia.org] Frye Standard [wikipedia.org] Agree or disagree, there is plenty of literature on the subject; it's not like no one has thought about this.

Re:That's how science works

[Bruce Perens]

I think you are allowed to refuse a breathalizer in some jurisdictions. If you do, they take you to get a blood draw immediately, and charge you based on the amount of alcohol measured in your blood. I don't know how they measure it.

Re:Fishing expeditions

[Trepidity]

I think they're more saying that you need some argument for why you're making the request. The fact that it's sufficient to make colorful posters and wave around a PhD just means that the MN court has put a fairly low bar on how good the argument has to be--- but they do require that you make some sort of argument. The guy whose request was rejected appears not to have made any argument at all for why retrieving the source code would plausibly help his trial; he just stated flatly that it might, which is not usually sufficient. The other guy made some effort to argue why the source code for this sort of device was relevant to his case.

Re:Hm.

[Mr. Freeman]

Here in Colorado the breathalizer is optional. Of course, refusal to take the test means they can haul you off to jail.
Once they take you to whatever office you can take either:
A) Blood test
B) Brethalater (desk-top version of a breathalizer, presumably more accurate)

If you refuse to take A or B then your license is revoked for a year.

Re:Hm.

[Zero__Kelvin]

"Mod parent up. His post is 100% correct. In the United States if you refuse a Breathalyzer you will be administered a blood test (not that this can take several hours in which you may or may not sober up...)." [Emphasis Added}

This is not a federal issue, and the procedures vary from state to state. In Pennsylvania you have to submit blood even if you take a breathalyzer and plead guilty or they take your license for a year. In Massachusetts you can take a breathalyzer or a blood test, but can only do the latter if you can afford to pay a personal physician to show up at the station and perform the test. (Read: Aren't poor and/or ignorant)

So you see, different states abuse citizens right in different ways ;-)

Re:Fishing expeditions

[ari_j]

Lawyers and judges not only cite sources, but are strongly encouraged to do so very precisely to an extent that other professions never do. This is both as a matter of professionalism and as a matter of getting your point across. It is more credible to read a sentence and see that it is cited to a specific paragraph in each of five different sources, with a relevant quote from two of them in parentheses, than it is to read a sentence and just see an author's name and a year after it. Making your points in a succinct, reasoned, and credible manner is how you win a legal argument. And that's probably why the APA citation format is less precise: If you don't convince someone your psychology term paper is right, nobody loses their money or freedom.

Legal arguments can be difficult to read if you lack the background. For instance, a legal brief about discretionary immunity to a lawsuit might not make much sense if you are not aware of what immunity means in that context or if you don't know that the way to avoid a jury ever hearing a case about an injury is to convince the judge that this mysterious "duty" thing is missing. But, given only a basic background, any properly-written legal memorandum or brief will be easy to read, with short sentences and well-organized paragraphs, not using obscure words.

By contrast, legal agreements are hard to read because the lawyers who write them spend the entire time trying to think of what loophole they might have missed and how to plug it. It borders on irony that their efforts to be absolutely clear in exactly what every term of the agreement means (and thereby preventing other lawyers from saying they mean something else) result in the agreement as a whole being nearly impossible to comprehend in its entirety at any one moment. The sickening part is that a brief is written for a more legally educated audience than a contract, since the person against whom the contract will be enforced is likely not to be an attorney or judge, and if a person can't understand a contract then he has a slightly better chance of getting out of it.

Re:That's how science works

[ari_j]

In my state, and likely in many others, we have an "implied consent" law. What it says is that you implicitly consent, by signing your name to your driving license, to a breath alcohol test whenever you are stopped for a traffic violation. It also says that, if you revoke your implied consent by refusing a breath test, you automatically lose your license as an administrative matter between you and the department of transportation. Even if you are acquitted of the DUI, you have to take the DOT to court to get your license back, because you broke your agreement in getting it.

We also, as I've mentioned elsewhere in this thread, don't convict you of DUI based on a breath test. The breath test (an SD-2 Breathalyzer machine in most cases) just gives enough evidence to take you in and do a blood draw. This avoids the source code problem, among others, by using well-known, old-fashioned, and I believe published lab methods to measure your blood alcohol content.

Of course, the SD-2 can be used to convict you of being a minor in consumption of alcohol, which makes sense because, whereas the DUI law punishes 0.08% or higher and an inaccurate measurement by the SD-2 can make or break the case, an MIC punishes anything greater than 0%, so an inaccurate measurement only matters if it finds alcohol where there is none, which is vastly less probable than inaccurately measuring the amount of alcohol where there is some.

Re:Hm.

[d'fim]

Correction:
You have to refuse the breathalyzer and the blood test for the penalty to kick in.

Re:That's how science works

[Anonymous Coward]

Nice one AC, then why have I been told time and time again to refuse the Breathalyzer and go straight to the blood test?

There is a difference between science and legal strategy. Also note that in some jurisdictions refusing the Breathalyzer carries the same penalty as DUI.

If you're pulled over for suspected DUI, a Breathalyzer measures BAC at that time. For a blood test, the cop on the street isn't equipped or trained for that. They are going to take you to the station, find the blood tech, gather the blood equipment, and take the blood sample. This is going to take time (and an emergency might popup in the meantime).

And during all that time, your BAC is declining due to your body metabolizing the alcohol. So the BAC measured by the blood test will usually be lower.

That's why.

Re:That's how science works

[Buelldozer]

I had a breathalyzer administered roadside by an officer show me as legally intoxicated, which I found very odd since I hadn't consumed ANY alcohol in at least three days.

I absolutely insisted on being taken to the hospital for a proper blood test. The staff there were very much not amused with the officer when my ACTUAL B.A.C. was at .001!

Breathalyzers are great in theory, out in the real world they can AND DO fail.