Drunk driving cases turn on source code

[Brutuskend]

MIAMI - Timothy Muldowny's lawyers decided on an unconventional approach to fight his drunken driving case: They sought computer programming information for the Intoxilyzer alcohol breath analysis machine to see whether his test was accurate.

Their strategy paid off.

The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A county judge tossed out Muldowny's alcohol breath test ? a crucial piece of evidence in a DUI case ? and the ruling was upheld by an appeals court in 2004.

Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say.

"Any piece of equipment that is used to test something in the criminal justice system, the defense attorney has the ability to know how the thing works and subject its fundamental capabilities to review," said Flem Whited III, a Daytona Beach attorney with expertise on DUI defense.

The Intoxilyzer, manufactured by CMI Inc. of Owensboro, Ky., is the most widely used alcohol breath testing machine in the United States and is involved in the vast majority of these legal challenges. It is used exclusively by law enforcement agencies in 20 states, including Florida, and by at least some police agencies in 20 other states, according to the company.

Most states have "implied consent" laws for motorists requiring DUI suspects to blow into a breath analysis machine if asked to do so by a police officer.

"The breath test is an integral part of any prosecution," said Earl Varn, an assistant state attorney in Sarasota.

In Florida, state law currently considers a breath test valid if the machine is approved by the Florida Department of Law Enforcement and the person administering the test is qualified. The law also says that a defendant is entitled to "full information concerning the test taken" if such a request is made.

The meaning of that phrase is the key to the DUI challenges in Florida and other states with similar laws.

DUI defense lawyers insist that "full information" means every minute detail about the Intoxilyzer, including the source code used by its computer processor to analyze breath samples, should be subjected to review by expert defense witnesses. Some judges have agreed.

"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," Florida's 5th District Court of Appeal ruled in Muldowny's case, which resulted in his charges being reduced to reckless driving.

CONTINUED:

 

[state 08]

It's kinda like a "Get out of DUI offense!" card

and everyone has one!

 

[pontifex]

yay! more drunken drivers out there to kill innocent people.

 

[S Freud]

Originally posted by: state 08
It's kinda like a "Drive drunk and kill someone" card

and everyone has one!

Fixed

 

[Phoenix86]

Rut-roh.

Give up the source code and give every competitor the keys to the castle, or hold on to it at the risk of making it useless. Interesting.

 

[alexeikgb]

awsome...

 

[pontifex]

Originally posted by: alexeikgb
awsome...

you think people getting away with drunk driving because a company won't give up its source code is awesome?

 

[TGS]

Just make the code available for review, under NDA.... done. If the code comes through without any issues the first few times, I'm sure people will stop asking.

 

[Feldenak]

Originally posted by: pontifex

Originally posted by: alexeikgb
awsome...

you think people getting away with drunk driving because a company won't give up its source code is awesome?

I do. It's a poorly written law, this is the best way to get it changed.

 

[Tobolo]

lets go DRINKING!!!!

 

[pontifex]

Originally posted by: Feldenak

Originally posted by: pontifex

Originally posted by: alexeikgb
awsome...

you think people getting away with drunk driving because a company won't give up its source code is awesome?

I do. It's a poorly written law, this is the best way to get it changed.

what exactly is poorly written about it?

 

[pontifex]

Originally posted by: Feldenak

Originally posted by: pontifex

Originally posted by: alexeikgb
awsome...

you think people getting away with drunk driving because a company won't give up its source code is awesome?

I do. It's a poorly written law, this is the best way to get it changed.

what exactly is poorly written about it?

 

[mercanucaribe]

Originally posted by: pontifex
yay! more drunken drivers out there to kill innocent people.

Maybe they should release the source code, unless they have something to fear. Trade secret? For Christ's sake it's a device that measures alcohol in the air that comes into it, not Windows Longhorn. It's obvious they are hiding something.

I agree with the FEDERAL COURT, who I'm sure hates drunk driving as much as any armchair prosecutor.

"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," Florida's 5th District Court of Appeal ruled in Muldowny's case, which resulted in his charges being reduced to reckless driving.

 

[Feldenak]

Originally posted by: pontifex

Originally posted by: Feldenak

Originally posted by: pontifex

Originally posted by: alexeikgb
awsome...

you think people getting away with drunk driving because a company won't give up its source code is awesome?

I do. It's a poorly written law, this is the best way to get it changed.

what exactly is poorly written about it?

In Florida, state law currently considers a breath test valid if the machine is approved by the Florida Department of Law Enforcement and the person administering the test is qualified. The law also says that a defendant is entitled to "full information concerning the test taken" if such a request is made.

That part needs to be changed. Full information does not need to include the source code...perhaps something about proper calibration tests or something.

Either way, I think the DUI laws are a tad too strict...we're slowly working our way to having a glass of wine or 2 with dinner will get you a DUI charge.

 

[TheoPetro]

this may get me out of underage drinking charges if i get caught. i sure as sh!t wont be drivin tho

 

[jagec]

Originally posted by: TGS
Just make the code available for review, under NDA.... done. If the code comes through without any issues the first few times, I'm sure people will stop asking.

No need. Just make up sample "breath" solutions out of CO2, oxygen, water vapor, and alcohol in known quantities. Use various "BAC" levels, and calibrate the detector with them.

 

[PingSpike]

I think the NDA idea presented is the best course of action here. The law is pretty clear that they do in fact have a right to view the source code of the device primarily used to convict them, which actually seems fair enough.

 

[BigJ]

Originally posted by: TGS
Just make the code available for review, under NDA.... done. If the code comes through without any issues the first few times, I'm sure people will stop asking.

Because nobody ever leaks information under a NDA, especially if there is a profit involved.

 

[coomar]

this is a weird case, I can see why the courts ruled the way they did

 

[ForumMaster]

sweet man! let's get out the :beer:'s!

 

[Armitage]

Originally posted by: jagec

Originally posted by: TGS
Just make the code available for review, under NDA.... done. If the code comes through without any issues the first few times, I'm sure people will stop asking.

No need. Just make up sample "breath" solutions out of CO2, oxygen, water vapor, and alcohol in known quantities. Use various "BAC" levels, and calibrate the detector with them.

What if there are "easter eggs" - maybe push some buttons in a certain sequence to always get a positive (or negative), etc. Only a source code review will turn that up.

I'm not saying there are - but it could happen. I'm sure there are a few bad cops out there who would like that feature.

I agree with the court on this one - the manufacturers trade secrets don't trump justice. If you want to be in this business, you're subject to increased scrutiny. Same way for the voting machine debate.

 

[KarenMarie]

that is disgusting.

i hate when ppl do bad stuff the use a technicality in the system to skate from their guilt.

 

[waggy]

Originally posted by: Armitage

Originally posted by: jagec

Originally posted by: TGS
Just make the code available for review, under NDA.... done. If the code comes through without any issues the first few times, I'm sure people will stop asking.

No need. Just make up sample "breath" solutions out of CO2, oxygen, water vapor, and alcohol in known quantities. Use various "BAC" levels, and calibrate the detector with them.

What if there are "easter eggs" - maybe push some buttons in a certain sequence to always get a positive (or negative), etc. Only a source code review will turn that up.

I'm not saying there are - but it could happen. I'm sure there are a few bad cops out there who would like that feature.

I agree with the court on this one - the manufacturers trade secrets don't trump justice. If you want to be in this business, you're subject to increased scrutiny. Same way for the voting machine debate.

i fully agree.

If you are charged and the main evidence is from a machine you should have every right to know how that machine works.

To deney someone the right to view the evidence and make sure it is 100 correct is insane. that just does not seem fair.

I think certain machines people should have 100% access to all parts. Such as this and the voting machines. People have to be able to trust that the machines are correct and no way to manipulate results.

 

[BigJ]

Originally posted by: Armitage

Originally posted by: jagec

Originally posted by: TGS
Just make the code available for review, under NDA.... done. If the code comes through without any issues the first few times, I'm sure people will stop asking.

No need. Just make up sample "breath" solutions out of CO2, oxygen, water vapor, and alcohol in known quantities. Use various "BAC" levels, and calibrate the detector with them.

What if there are "easter eggs" - maybe push some buttons in a certain sequence to always get a positive (or negative), etc. Only a source code review will turn that up.

I'm not saying there are - but it could happen. I'm sure there are a few bad cops out there who would like that feature.

I agree with the court on this one - the manufacturers trade secrets don't trump justice. If you want to be in this business, you're subject to increased scrutiny. Same way for the voting machine debate.

When you get down to the station, request a blood toxicology test.

 

[waggy]

Originally posted by: KarenMarie
that is disgusting.

i hate when ppl do bad stuff the use a technicality in the system to skate from their guilt.

and i hate it when people are not allowed to fully defend themselves because of "trade secrets".