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DUI Defendant Wins Source Code to Breathalyzer
Posted by
Zonk
on Thu Aug 09, 2007 05:23 PM
from the one-way-to-fight-the-man dept.
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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News: Breathalyzer Source Code Revealed 501 comments
Nonillion writes "New Jersey attorney Evan M. Levow was finally able to get an order from the Supreme Court of New Jersey forcing the manufacturer of the popular Draeger AlcoTest 7110 to reveal the source code. Levow turned the code over to experts, Base One Technologies, to analyze. Initially, Base One found that, contrary to Draeger's protestations that the code was proprietary, the code consisted mostly of general algorithms: 'That is, the code is not really unique or proprietary.' In other words, the 'trade secrets' claim which manufacturers were hiding behind was completely without merit." Following up an earlier discussion here, the state of Minnesota has (without explanation) missed a deadline to turn over the code for a different breathalyzer.
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News: Judge Rules Defense Can Get DUI Machine Source Code 270 comments
pfleming alerts us to developments in Arizona on a subject we have frequently discussed (e.g. FL, MN, NJ): efforts in DUI cases to obtain source code to devices that analyze blood alcohol levels. On Friday a Pima County Superior Court judge ruled that the software that powers the Intoxilyzer 8000 must be revealed to defense lawyers. "Defense attorneys representing more than 20 people arrested on felony DUI charges agreed to consolidate their cases into one and to argue it before [Judge] Bernini ... The source codes are crucial because the Intoxilyzer 8000 sometimes gives 'weird' or inexplicable results ... Six other states have been battling CMI [maker of the Intoxilyzer] over the source code — Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey... CMI has currently racked up over $1.2 million in fines in a civil contempt order for not disclosing the source code in Florida."
[+]
MN Supreme Court Backs Reasoned Requests For Breathalyzer Source Code 199 comments
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."
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What I would do first (Score:5, Funny)
Source Code Revealed (Score:5, Funny)
10 print "U R DRUNK!!!"
20 GOTO 10
Owner (Score:5, Insightful)
I just love this quote (Score:5, Funny)
Language? (Score:5, Funny)
Brainf**k maybe...
Re:Language? (Score:5, Insightful)
Thank you for editing out that nasty word, or reading that might have fucked up people's brains.
This joke brought to you from Larry Wall, courtesy of Bluesman Slashdot Posting, INC.
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Does the unit differentiate acetone from alcohol? (Score:5, Interesting)
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]
I bet the reason there was resistance.. (Score:5, Informative)
..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.
Responsibility in DUI Laws (Score:5, Insightful)
Also, breathalyzers have a +/- 20% error [duiblog.com], which is rather unfortunate.
Ignition interlocks have a
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).
I'm shocked they upheld this! (Score:5, Interesting)
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:What about (Score:5, Funny)
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Re:What about (Score:5, Insightful)
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Re:What about (Score:5, Insightful)
Why don't we just bring back prohibition while we're at it?
Having spent time in North Italy (Lots of mountain roads), I can say that I saw many people out to lunch split a bottle of wine between 2 or 3 people, and drive back to work. In all my time there, I didn't see one wreck. Not one.
I come back stateside and in one day see 10 obviously fatal wrecks on one road. Flat dry pavement.
Speed doesn't kill. Some alcohol doesn't kill. An extremely lax drivers education/training/licensing policy coupled with general distraction and self-ceneredness (I'm the king of the road get the hell out of my way so I can get my snot-nosed brats to soccer practice) absolutely does. Speed and alcohol can make that worse, but they are far far from the boogieman many idiots in the US make them out to be.
I say fix the real problems, and roll back the levels to where they were in the 70s, enforce those levels effectively, and shut the hell up and stop harassing relatively innocent tax payers.
My $0.02US.
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Re:What about (Score:5, Informative)
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Re:What about (Score:5, Insightful)
That said, a little planning also can go a long way
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Re:What about (Score:5, Insightful)
Yup. My brother spent 2 days in jail (with no record of it or the infraction--that's why he did it) for having ONE PINT which he drank over the course of 30 minutes and then drove home. He was pulled over for speeding, was breathalyzed, blew a .07, and was taken in for DWAI (DUI Jr.). When he went to his punitive alcohol class, he found that that was absolutely expected given his weight. If he'd waited like 15 minutes, he would have been fine.
But come ON. Who is impaired after ONE BEER? That's now my personal limit if I'm driving anywhere, though, and I wait an hour. Not because I'm too drunk to drive, but because the US is a police state.
I live in Japan now, where the limit is... anything over 0. This seems really draconian, until you see that there really is no reason to even worry about driving if you're going to be drinking. There are buses, there are trains, there are cabs, and there is even this really great service where if a night out for dinner "accidentally" becomes a night out drinking, 2 guys in a little tiny car come to where you've parked and one gets out and drives you home in your car while the other guy follows. It costs about the same as a cab ride (cabs here are expensive), but you AND your car get home safely! I have never really felt inconvenienced by the law here, even though it is much stricter than it is in the US, where I OFTEN feel inconvenienced, if not terrified.
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Re:Sigh (Score:5, Insightful)
Really this seems like a win-win for everyone involved.
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Re:Sigh (Score:5, Insightful)
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Re:Sigh (Score:5, Insightful)
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.
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Re:Sigh (Score:5, Interesting)
They have on average a 20% margin of error (a
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
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_to
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.
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Re:state==public domain? (Score:5, Interesting)
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.
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Re:state==public domain? (Score:5, Funny)
Yeah, I once had wreckless driving put on my record. My insurance premiums blew through the cellar.
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Re:state==public domain? (Score:5, Informative)
Yes, that is close to the reality.
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-co
So, you've agreed to it in advance by having a driver's license. You get to pick your poison in terms of what kind of test it is.
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Re:state==public domain? (Score:5, Informative)
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.
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Re:state==public domain? (Score:5, Insightful)
I'll bite. You are an AC Cave Troll. You are scum.
I have lived past friends who thought they could drink and drive and worse, friends who were the victims of others who thought they could drink and drive. Nothing quite brings this whole issue home like the death of an 8 year old child. He was in the back seat on the way home rom a late visit to his grandparents in northern Indiana. His parents never saw the driver coming. He had his lights off. He hit them at about 60 miles per hour. T-Bone right where their son was sitting. He lasted about a week without ever gaining consciousness before he died.
While in California, I was able to do a drink and drive course. I don't know if they do those anymore, but it was very educational. Alcohol impairs your ability to perform any function. Period. It is not a question of what it does, but how badly it does it. The law allows a few drinks over time. I would allow none.
It is irresponsible, selfish and childish to drink and operate any machinery that could be dangerous. I would like to see much stiffer sentences for drunk and/or impaired driving and tickets for anything that impairs a person's driving. There is no excuse for it. You can argue with me all you want. You can call me names, you can hate me, but none of that brings back my dead friends.
InnerWeb
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