MN Supreme Court Backs Reasoned Requests For Breathalyzer Source Code 199
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."
Hm. (Score:3, Interesting)
Re:Hm. (Score:4, Interesting)
That is mentioned as a consequence of the ruling. Now it remains to be seen whether the manufacturer will release the source code. If they won't, presenting a copy of Bruner's exhibits will be a 'get out of jail free' card for drunk driving in Minnesota. Which will mean the state will have to go with a manufacturer that WILL provide the source. Nice.
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Re:Hm. (Score:5, Funny)
Wait, wait, wait. You're saying embedded code often stinks? Don't we use embedded code in voting machines? My God, has anyone checked them? This sounds like it could be a real problem, I think we need to notify the authorities.
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... I think we need to notify the authorities.
I dunno, maybe we should vote on that.
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Well I vote [NO]. What? I meant to type [NO]. What's going on here?
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What, you mean something like twenty seven eight-by-ten colour glossy photographs with circles and arrows and a paragraph on the back of each one explaining what each one was? Don't you know justice is blind?
I wanna kill! kill! (Score:2)
I'm afraid you're joking to the lawn with this one.
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If by "stinks" you mean buggy I disagree. I believe there's a tradition of higher standards in embedded software than other types due to the fact that historically fixing bugs had a much higher price than for traditional software. If you were lucky the software was in proms that had sockets so you could send them a new version in the mail instead of requiring the customer to send the whole unit back for repair.
Today of course, many embedded systems support on-board reprogramming with the update binary provi
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But that's contrary to the prohibitionist agenda that defines "drunk" using arbitrarily low readings from a breathalyzer, so it's unlikely to occur.
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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.
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Minnesota's implied consent law carries a breathalyzer refusal penalty of an automatic 12 month driver's license revocation.
Re:Hm. (Score:5, Informative)
You have to refuse the breathalyzer and the blood test for the penalty to kick in.
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Re:Hm. (Score:5, Informative)
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
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It's good to know that Massachusetts hates the poor and ignorant. I was unclear on that. Any state that hates poor and ignorant can't be all bad.
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In Minnesota, you may request a blood test in place of the field breathalyzer, which (according to my attorney) you SHOULD do.
You should also decline (again, according to my attorney - consult your own even if you live in MN) to take any of the other "field sobriety tests" such as walking toe-to-heel, lifting one foot and counting, etc. they simply allow the officers to collect more evidence against you. You are not required to submit to these tests.
Any delay in taking the blood test during transport to th
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In NY, implied consent is the reigning rule. Although you constitutionally can decline a test, doing so will result in penalties of one form or another.
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Can they just take your blood? Here in Canada taking your blood is considered the most serious form of search and not lightly allowed.
It is only allowed (with a search warrant which can be faxed and presented to you the next day) in the case of an accident where the driver is unconscious. Also they have to take 2 samples so you can ask for one to get independently tested.
Refusing to give a breath sample means being charged with failure to blow which carries the same penalties as DUI. Also note that impaired
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not necessarily (Score:2)
He could still be found guilty of DUI assuming other evidence was convincing; and for that matter, they could still cart people to a hospital for a blood test.
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Fishing expeditions (Score:5, Interesting)
Re:Fishing expeditions (Score:5, Informative)
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.
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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.
I think being an expert witness in a civil trial is vastly different than being called to testify for a criminal case. In civil cases, the penalties are financial and usually end up being worth settling because the legal costs can be more excessive than the settlement costs.
You can't settle criminal cases easily, so shopping for an expert to prevent jail time probably has a heavier w
Re:Fishing expeditions (Score:5, Interesting)
I've never found it very difficult to understand the lawyers and judge's case findings. Yes, they use a little Latin, but you can learn the 100 most used words and look up anything more that comes up on the web. And they cite cases, which you can look up too.
Are you talking about contracts?
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I also understand most legal gibberish (as an anarcho-capitalist, if it is law-focused, it's gibberish). I would wager one year's income that 9 out of 10 people (my definition of "laymen") would not be able to.
The court wants/demands/expects technical terms and ideology laid out in a way than 9 out of 10 people would understand. The garbage they spew in response wouldn't meet the standards to what they expect.
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Yeah, because they've never learned words like "cloture". But that's the framework that they function in every day, even if they don't think about it much. Nobody taught me that either, I guess I just took the trouble to learn.
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Also, you cannot blame Guantanamo or any of that other recent crap on the people who w
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Re:Fishing expeditions (Score:4, Interesting)
So essentially challenging evidence gathering methods is insufficient, but making colorful posters and waving around a PhD is fine?
Yes. Like a slashdot legal opinion is worthless, and someone who has passed the bar has value. Who is questioning the procedure is relevant.
Re:Fishing expeditions (Score:5, Funny)
I think the problem here is that the guy caught drunk-driving didn't pass the bar. He stopped and went in.
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> He stopped and went in.
And not necessarily in that order.
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Me: I think it might suck wind, like 90% of the proprietary code in production use today.
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Keep in mind that most judges do try to strike a balance between allowing parties to gather necessary evidence and ensuring that there's a reasonable likelihood what's being subpoenaed is relevant and necessary, and at least in theory aren't supposed to allow subpoenas just to fish.
That being said, when one is facing a criminal conviction largely based upon the results from an electronic device, "I want to know exactly how that device works, including its source code", seems on its face to be a request of r
Re:Fishing expeditions (Score:4, Informative)
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:Fishing expeditions (Score:4, Interesting)
I remember a discussion about this on /. awhile ago, and somebody brought up a point I couldn't quite remember. I hopped over to the wikipedia page to look for something about found this:
"Some breath analysis machines assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading."
and this:
"Breathalyzers assume that the subject being tested has a 2100-to-1 'partition ratio' in converting alcohol measured in the breath to estimates of alcohol in the blood [. . .] However, this assumed 'partition ratio' varies from 1300:1 to 3100:1 or wider among individuals and within a given individual over time."
I'm not sure what, exactly, I was remembering from the previous discussion; these may or may not be it. What I do remember is that it was essentially that, somewhere in this code, there are assumptions made and that the validity of the assumptions is going to directly affect the validity of the code.
Without knowing what, exactly, this machine is measuring and what it is assuming about the individual taking the test, it's impossible to know whether or not there's any reason to believe the test was inaccurate. Since both of these people argued this case to the Minnesota Supreme Court, I hope they both feel they're innocent.
I suppose this guy's lawyer should have made that argument. On the other hand, I don't think it's unreasonable for judges who are going to oversea DUI cases to understand that a breathalyzer is not, by any stretch, conclusive evidence. Use it to haul somebody in, by all means -- then get yourself a blood test. Bill the person being charged for the test for all I care. The breathalyzer itself should not be admissible in court. (I'm ignoring, by the way, the fact that something like having taken cough medicine could also affect the results.)
That's how science works (Score:5, Insightful)
Re:That's how science works (Score:4, Informative)
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Daubert superseded Frye and does specifically require that the technique be subject to peer review AND PUBLICATION. That means that the super secret proprietary code in the brethalyser disqualifies it (or should disqualify it) as scientific evidence.
As far as 'generally accepted' goes, since this is essentially a medical test, I would have to presume the medical community's opinion would be relevant. As far as I know, when a doctor wants to know a patient's BAC, they do a blood test every time. Evidently th
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I'd go a step further, and refuse any breathalyser that doesn't run linux.
Re:That's how science works (Score:5, Informative)
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The Founding Fathers considered the body of a citizen to be the most prized or sacred "property" of all types of property, with proportional rights to privacy. Collection of things like breath or bodily fluids, etc. was a
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Their (absurd) little argument to get around this is to claim that "driving is not a right, it is a privilege", at least in my home state. You can opt out, you just also opt out of the "privilege" of driving.
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Re:That's how science works (Score:5, Informative)
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.
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Guilty until proven innocent.
It is the same (or worse) here in MN.
I will not believe that you can sign away your constitutional rights. They may try to push you
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You can, depending on the jurisdiction, according to an Illinois judge.
It's generally assumed that you have a constitutional right to sue. We brought it up in a Constitutional law class many years ago in high school, here in Illinois, with regards to things like sports waivers agreeing not to sue your school. To get a legal opinion, our teacher asked a judge how it went.
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I will not believe that you can sign away your constitutional rights.
Try telling a drill instructor that.
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Not disagreeing with you.. but it isn't about Constitutional right to operate a motor vehicle, it is about forcing you to give evidence against yourself, which is unconstitutional. The fact that is part of an agreement between you and the DMV does not mean that it is not against your Constitutional rights... I think that this would come into play, if for example the DMV decided that they could collect your GPS data from your car to determine if you were speeding or not.. with the same parameters of either
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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.
Actually, it can be a problem. Many mouth washes contain alcohol (in that case, the breathalyzer is technically correct, but the assumption that alcohol on your breath means you consumed an alcoholic beverage is faulty). Many breathalyzers cannot distinguish ketones from alcohol. Even is the breathalyzer functions perfectly every time, it's not valid to presume guilt based on the slightest trace of a reading.
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Fine then, it's not reliable as PROOF of guilt either. There are too many things that can make it read non-zero other than consuming an alcoholic beverage.
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We bar evidence all the time if it's not reliable. That is particularly true when it might be prejudicial, that is when the judge knows it will LOOK damning to the jury but is in actuality either irrelevant or unreliable. A judge may also instruct the jury to disregard testimony if it fails to meet the relevant standards.A judge may even penalize the prosecution if it knowingly brings a case based only on such inadmissible evidence (though it is more common to simply admonish them and throw the case out). E
They can't force a blood draw (Score:3, Insightful)
At least not in any jurisdiction I'm aware of, but you can demand one. This is the way to go too, have them take blood, and demand a sample be taken for your attorney as well. The reason is that the only way to accurately measure blood alcohol content is to, well, measure the amount of alcohol in the blood.
The reason the breathalyzer manufacturers are so scared to have their units inspected isn't because there's something evil in the source, but because they know it is a flawed system. They are things that
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it can only measure the absolute count of methyl-group molecules in the sample chamber
Well, it's alcohol molecules, not methyl groups (I presume you're not a chemist), but yes, that's true.
not the amount of alcohol in your blood, or even the sort of things you'd need to make a reasonable estimate given the amount of alcohol in your exhaled breath
The exhaled alcohol comes from the blood vessels in your lungs. The amount of alcohol in your exhaled breath strongly correlates to the alcohol concentration in you
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but the idea of using exhaled alcohol content to calculate BAC has been proven to be very accurate and has been tested to death.
Nice one AC, then why have I been told time and time again to refuse the Breathalyzer and go straight to the blood test?
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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.
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The main issue here is that it is physical evidence, that is (ideally) objective rather than subjective.
Except your 'objective' evidence tells you very little about that person's driving ability, while your 'subjective' evidence tells you far more.
The problem is that if you were to start subjecting people to objective driving tests to determine whether they're safe to be on the road (measuring reaction times, etc), you lose the link to EVIL ALCOHOL and suddenly start taking away the licenses of people who are lousy drivers even when sober; which would be great for road safety, but not so good for anti-alcohol
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It tells you a lot. Driving impairment is correlated with BAC.
Mart
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There have been MANY studies of this. The reality is not what the lawmakers would have you believe.
First, it is a fact that experienced drinkers can drive safely with a lot more alcohol in their systems than inexperienced drinkers can. (This is one of several ways in which BAC is NOT directly related to driving impairment.) The current legal system does not account for this, and in fact commonly denies it is true, even though the sci
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Nor would it be good for people who are just plain lousy drivers. There are plenty of those out there.
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The point is that these instruments have been thoroughly tested and shown to be accurate. That's where the peer review lies. What difference does it make then in how it does it? I can't possibly believe that a source-code audit of one of these instruments will reveal a bona fide error. Its either a stalling tactic or they're looking to launch a Chewbacca defence by introducing confusing arguments about computer code.
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You didn't read the last link in the summary then. That was a report on a machine that was audited and was found to be shot full of fundamental errors that certainly could affect it's accuracy including failure to properly allow for settling time when taking readings and performing averaging incorrectly.
The machine was in use and was also supposedly thoroughly tested.
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Having designed breathalyser equipment before, I can assure you the standards required of evidential breathalysers is very high.
Testing involves the use of standardised references at different concentrations, over the specified calibration life of the instrument. The science of the relationship to blood alchohol to breath alchohol is well known and defined in a countries standard. (it varies from 2000:1 to 2300:1)
The portable machines the Police use, although accurate, are generally NOT evidential. (some co
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Even if it was a magical black box, it could be subject to scientific double-blind testing and you could measure the precision & accuracy of the magical black box.
How do you measure the precision and accuracy of a piece of software without the code?
You could test it a million times and still have it produce complete garbage because of a rare, random buffer overflow, or because it's coded to claim everyone using it is guilty every time the year/month/day/hour is the same as the programmer's mother's telephone number.
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Even if it was a magical black box, it could be subject to scientific double-blind testing and you could measure the precision & accuracy of the magical black box.
Yes, it would be good to require that sort of testing of each person who is ever facing conviction based on a Breathalyzer BAC result. Unless the error rate is exactly zero, every single person has the possibility of falling into that category. That needs to be eliminated prior to a conviction. So, you can do blood and breath experiments for e
My father wrote the first Felony DWI laws in MN (Score:4, Interesting)
Thought I would share this, and before a bunch of you start posting BS about the claim of who wrote what, that is not the point. The point is the evolution of MN DWI law and technology.
My father as a prosecutor in Minneapolis in the 60's and 70's started prosecuting drunk drivers for things like felony manslaughter and such. At the time it was just misdemeanor, and often the police would just give someone a ride home. The State legislators and several lobby groups caught wind of it and asked him to write the laws. Those became the first felony laws for DWI in MN, and later where used as a model for other States around the country. Obviously they have been super modified since then, but the fundamental principle that DWI is something serious is still there.
My father went on in private practice as defense attorney in the 80's. Almost all of his acquittals on DWI came down to discrediting the probable cause (i.e. the officer) for the arrest in the first place. Typically the officer's judgment was always front and center (e.g. did he really see him cross the center line on an ice covered road). It got progressively harder as they started adding video cameras and other technology to get someone off on a DWI charge, as the officer's judgment became less important.
I suspect since my father's time, the only thing left to really attack is the validity of the technology itself that measures the crime.
Will the same thing also be for red light cameras (Score:2)
Will the same thing also be for red light cameras / speed cameras / video toll systems and more?
If I get red light ticket should I ask for the light timing tables? the camera timing tables? When the last time the light was tested as well testing the camera system? how it is tied into the light part of the main controller or is it a add on to the controller. Was the railroad system working right if it is a light with a railroad crossing part of it?
There have been cases for yellow times being to short for spe
Re:These guys are no heroes (Score:5, Insightful)
I'd hate to see Slashdot supporting these wreckless drunks just because they claim to be l33t haX0rs.
That is the point. If the machine is faulty, they are not "drunks." Kinda like that printer wasn't really seeding Smells Like Teen Spirit. Only by examining the procedure for determining that state, can we know.
Re:These guys are no heroes (Score:5, Insightful)
I'd hate to see slashdoters ignoring the basic principles of our justice system just to pursue some prejudice against accused drunk drivers.
Like it or not the foundation of out criminal justice system is based on the idea its better to let the guilty go free then the innocent be punished. It might be "PC" to "get tough on drunk driving," but this is a nation of laws or at least it used to be. The burden of evidence is supposed to be on the state. If the state is using equipment that must have its inner workings concealed as evidence. I think in the name of justice we must assume that without other pretty damning evidence its not sufficient to prove beyond a reasonable doubt guilt.
If you can't show me how it works or show that it does work in a double blind test with a sufficient sample size, it would not be a good enough argument for me serving on a jury to convict.
The state is much more powerful than and individual the burden of proof is supposed to be on them. A few numbers on an LED display connected to some box you blow in does not cut it, unless you can tell me a lot about what those numbers mean, how they are determined, if its accurate.
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for one, sobriety tests, which should yield fairly good indicator...
There is a test - it is called a blood test. Since the legal limit is set in terms of the amount of alcohol in your blood this is the only completely accurate way to determine whether you are over the limit.
Oh jeez (Score:3, Insightful)
Just as one can't prove a negative
Not this crap again...
http://www.google.com/#hl=en&q=can't+prove+a+negative [google.com]
...And if it floats, it's probably a duck. (Score:3, Insightful)
I think enough of us who are older have known people to be killed by drunk drivers and I honestly have no idea why drunk drivers are even allowed to live after they kill someone.
So go kill the drunks that killed your friends. Be the vigilante.
Or allow that due process of law should trump personal feelings in these matters.
The bottom line is, if someone is getting pulled over for DUI, its because they were already obviously driving smashed.
People drive poorly for all sorts of reasons apart from intoxication. Being tired, or distracted, or suffering from a condition that causes poor night vision all too frequently lead to accidents.
And not everyone who gets pulled over is guilty of something. Cops make mistakes too...
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>
The bottom line is, if someone is getting pulled over for DUI, its because they were already obviously driving smashed. You can see them when you drive - weaving, going slow, forgot to put the headlights on, maybe stopping too soon or too often... and for what? Really, for what do people do this?
I hope you are never the cop who pulls someone over in diabetic keto acidosis... Looks like a drunk, smells like a drunk, acts like a drunk... And if you just dump them in the drunk tank, they will die and you will be on trial.
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If the machine is faulty, they are not "drunks."
Um. Wrong. Are you saying there were no drunk drivers before breath machines? Whether or not someone was drunk driving doesn't depend on the machine. Blood tests, failing FSTs, officer observations of your behavior and smell... any of these things are sufficient to convict beyond a reasonable doubt.
"Beyond a reasonable doubt" doesn't mean "beyond a shadow of a doubt." A possible or hypothetical doubt you have because you don't have a machine reading, or finger
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I believe what he is saying is that if the machine is faulty, the defendant may well be falsely accused.
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Defects in the source code IMO constitute reasonable doubt just as if you were given a speeding ticket based upon an improperly calibrated speed gun (kangaroo nature of traffic court notwithstanding)
Additionally, if the source code is suspect enough to invite a challenge to probable cause, then that endangers any subsequent blood tests based on "fruit of a poisoned tree", particularly if the state knew about defects.
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Regardless of the laws, BAC should probably be as close to zero-tolerance as is feasible due to non-drink products that contain trace amounts of alcohol, so I'd be less than pleased if they got off because they might have been as low as 0.075 BAC instead of the 0.08 the hardware tested them at.
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If they're wreckless, what's the problem? I'd rather get the wreckfull drivers off the road.
Re:These guys are no heroes (Score:4, Funny)
Paging Rene Descarte - Monsieur, we need you urgently....
Cheers,
Ian
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GP likely speaks American English.
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Well since he said they were wreckless, not reckless, I think he was inadvertently not vilifying anyone.
"Slashdot still works with javascript disabled." (Score:2)
"Slashdot still works with javascript disabled."
Sort of.
For example, without Javascript and running Index2, you cannot delete messages from the system - all the delete anchors are of the form '<a href="#" onclick="stuff">' and so are useless.
And if you aren't running index2, you don't get notifications of responses and the like anymore - at least that has been my experience.