DUI Defendants Skip Charge By Asking How Test Works

[cKGunslinger]

Link

SANFORD - Hundreds of cases involving breath-alcohol tests have been thrown out by Seminole County judges in the past five months because the test's manufacturer will not disclose how the machines work.

All four of Seminole County's criminal judges have been using a standard that if a DUI defendant asks for a key piece of information about how the machine works - its software source code, for instance - and the state cannot provide it, the breath test is rejected, the Orlando Sentinel reported Wednesday.

Prosecutors have said they do not know how many drunken drivers have been acquitted as a result. But Gino Feliciani, the misdemeanor division chief in the Seminole County State Attorney's Office, said the conviction rate has dropped to 50 percent or less.

Seminole judges have been following the lead of county Judge Donald Marblestone, who in January ruled that although the information may be a trade secret and controlled by a private contractor, defendants are entitled to it.

"Florida cannot contract away the statutory rights of its citizens,'' the judge wrote.

Judges in other counties have said the opposite: The state cannot turn over something it does not possess, and the manufacturer should not have to turn over trade secrets.

Interesting. The Justice System losing power due to the rights of the manufacturers. But on some accounts, I agree. If you can't be told the precise details of "how" you were tested and subsequently charged, then you should not be required to face those charges.

Looks like it's blood tests for everyone!

 

[Genx87]

It is a trade secret, are we going to allow drunk drivers trade secret information now?

 

[nutxo]

How can you argue whether the technology provides accurate readings if you are not allowed to know how something works?

 

[aka1nas]

Yes, otherwise we have only the manufacturer's word that the test is accurate. How can you defend yourself against a false positive from the testing device if you can't even find out how it works?

 

[1EZduzit]

It doesn't seem to me that it would be too hard to test the breathalyzers before the shift and after the shift to document there accuracy??

 

[GTKeeper]

Unless there is some kind of federal regulation on the device (inspection/test) to ensure that it is fair and meets standars (which I think in this case there isnt) then by all means the defendant should have the right to know how it works. I.E how it measures the alcohol level.

 

[d3n]

I had a speed camera ticket throw out becuase the city could not produce the calibration records when I requested them by mail. I told the judge I thought the camera was off and showed my certified letter and the ticket was dropped.

 

[Tom]

prosecutor's responsibility to prove the accuracy of their evidence, it isn't the Court's job.

 

[Genx87]

Originally posted by: nutxo
How can you argue whether the technology provides accurate readings if you are not allowed to know how something works?

If you drink x amount of drinks in y amount of time and your weight is z.

You will get a pretty good idea on their BAC. The body can only metabolize so much alcohol per hour.

If their unit is off by an unreasonable margin then I would expect the cops to drop the unit from service.

On top of the unit itself use the field sobriety test with the camera as more proof. You can also get a blood test.

 

[Genx87]

Originally posted by: 1EZduzit
It doesn't seem to me that it would be too hard to test the breathalyzers before the shift and after the shift to document there accuracy??

They have to calibrate the units and when they do it is recorded as calibrated.

 

[Tom]

Originally posted by: Genx87

Originally posted by: nutxo
How can you argue whether the technology provides accurate readings if you are not allowed to know how something works?

If you drink x amount of drinks in y amount of time and your weight is z.

You will get a pretty good idea on their BAC. The body can only metabolize so much alcohol per hour.

If their unit is off by an unreasonable margin then I would expect the cops to drop the unit from service.

On top of the unit itself use the field sobriety test with the camera as more proof. You can also get a blood test.

Most people don't breath out blood. At some point it has to be demonstrated that there is a relationship between whatever the device is measuring and BAC.

I don't see how that's possible without knowing how the device works. Simply correlating test results with each other isn't good enough in my opinion.

 

[piasabird]

If they cant tell you how a device works, then how do you know the test is accurate?

 

[RightIsWrong]

Originally posted by: Genx87

Originally posted by: nutxo
How can you argue whether the technology provides accurate readings if you are not allowed to know how something works?

If you drink x amount of drinks in y amount of time and your weight is z.

You will get a pretty good idea on their BAC. The body can only metabolize so much alcohol per hour.

If their unit is off by an unreasonable margin then I would expect the cops to drop the unit from service.

On top of the unit itself use the field sobriety test with the camera as more proof. You can also get a blood test.

I don't ever remember seeing a scale attached to the breath analyzer? How does it determine your weight to factor that into it's formula?

I agree that the formula is a relatively simple one, but the machine doesn't know how many drinks, over what length of time or body weight/mass. How does it compute? If they cannot provide that info, then you are not being allowed to refute their methods.

 

[Genx87]

Originally posted by: Tom

Originally posted by: Genx87

Originally posted by: nutxo
How can you argue whether the technology provides accurate readings if you are not allowed to know how something works?

If you drink x amount of drinks in y amount of time and your weight is z.

You will get a pretty good idea on their BAC. The body can only metabolize so much alcohol per hour.

If their unit is off by an unreasonable margin then I would expect the cops to drop the unit from service.

On top of the unit itself use the field sobriety test with the camera as more proof. You can also get a blood test.

Most people don't breath out blood. At some point it has to be demonstrated that there is a relationship between whatever the device is measuring and BAC.

I don't see how that's possible without knowing how the device works. Simply correlating test results with each other isn't good enough in my opinion.

Who said anything about breathing blood? How do you think these devices get your BAC?
The alcohol is contained in the moisture that leaves your lungs when you breath out.

 

[BDawg]

Corporate Rights > National Rights > States Rights > Personal Rights

 

[Genx87]

Originally posted by: RightIsWrong

Originally posted by: Genx87

Originally posted by: nutxo
How can you argue whether the technology provides accurate readings if you are not allowed to know how something works?

If you drink x amount of drinks in y amount of time and your weight is z.

You will get a pretty good idea on their BAC. The body can only metabolize so much alcohol per hour.

If their unit is off by an unreasonable margin then I would expect the cops to drop the unit from service.

On top of the unit itself use the field sobriety test with the camera as more proof. You can also get a blood test.

I don't ever remember seeing a scale attached to the breath analyzer? How does it determine your weight to factor that into it's formula?

I agree that the formula is a relatively simple one, but the machine doesn't know how many drinks, over what length of time or body weight/mass. How does it compute? If they cannot provide that info, then you are not being allowed to refute their methods.

As more alcohol enters your system then as a % it goes higher. The higher your BAC the more alcohol will be in each breath.

The test has little to do with your actual weight and instead deals with %s.

If you have a gallon of water and drop a dye in it and do the same with 100 gallons and use the same ratios. When you test the water for the concentration of the dye does it matter which one has more volume?

 

[Vic]

Faulty interpretation of the law on the part of the Seminole county judges.

How the machine works (i.e. the proprietary source code itself) is not nearly as important as the fact that is has been proven reliably to work. For example, when DNA evidence is entered at a trial, it is not required that the method of acquiring the DNA evidence be fully disclosed, just that that method used has been scientifically proven to be reliable. With radar guns, it is not required that exactly how the gun works be revealed, merely that it has been operated in a manner consistent with its known reliability (i.e. calibrated, tested, operated by trained personnel, etc.).

This particular situation stinks to me. I wonder if there is another company that makes DUI analyzing software based in Seminole county.

 

[irwincur]

The fact of the matter is though, every machine is unique and you cannot apply a broad brush to all of them. Assumptions are really bad in court - and they almost never hold up. To assume a machine works because the others do is not fair to the defendant. Whatever the case, any reasonable doubt is enough to drop a conviction. If the prosecutor cannot prove that the equipment is up to par, or cannot pass relevant information about the equipment for the defense it is an unfair advantage as well as more than a reasonable doubt.

The courts here are in the right.

 

[1EZduzit]

Originally posted by: Vic
Faulty interpretation of the law on the part of the Seminole county judges.

How the machine works (i.e. the proprietary source code itself) is not nearly as important as the fact that is has been proven reliably to work. For example, when DNA evidence is entered at a trial, it is not required that the method of acquiring the DNA evidence be fully disclosed, just that that method used has been scientifically proven to be reliable. With radar guns, it is not required that exactly how the gun works be revealed, merely that it has been operated in a manner consistent with its known reliability (i.e. calibrated, tested, operated by trained personnel, etc.).

This particular situation stinks to me. I wonder if there is another company that makes DUI analyzing software based in Seminole county.

True, but it would seem to me that there would be a difference in testing done in a lab enviroment and a portable device that get dropped, kicked around in a car, etc. They should calibrate the thing before and after each shift. How hard sould that be??

 

[Genx87]

Originally posted by: 1EZduzit

Originally posted by: Vic
Faulty interpretation of the law on the part of the Seminole county judges.

How the machine works (i.e. the proprietary source code itself) is not nearly as important as the fact that is has been proven reliably to work. For example, when DNA evidence is entered at a trial, it is not required that the method of acquiring the DNA evidence be fully disclosed, just that that method used has been scientifically proven to be reliable. With radar guns, it is not required that exactly how the gun works be revealed, merely that it has been operated in a manner consistent with its known reliability (i.e. calibrated, tested, operated by trained personnel, etc.).

This particular situation stinks to me. I wonder if there is another company that makes DUI analyzing software based in Seminole county.

True, but it would seem to me that there would be a difference in testing done in a lab enviroment and a portable device that get dropped, kicked around in a car, etc. They should calibrate the thing before and after each shift. How hard sould that be??

They do, just like they calibrate radar detectors.

 

[1EZduzit]

Originally posted by: Genx87

Originally posted by: 1EZduzit

Originally posted by: Vic
Faulty interpretation of the law on the part of the Seminole county judges.

How the machine works (i.e. the proprietary source code itself) is not nearly as important as the fact that is has been proven reliably to work. For example, when DNA evidence is entered at a trial, it is not required that the method of acquiring the DNA evidence be fully disclosed, just that that method used has been scientifically proven to be reliable. With radar guns, it is not required that exactly how the gun works be revealed, merely that it has been operated in a manner consistent with its known reliability (i.e. calibrated, tested, operated by trained personnel, etc.).

This particular situation stinks to me. I wonder if there is another company that makes DUI analyzing software based in Seminole county.

True, but it would seem to me that there would be a difference in testing done in a lab enviroment and a portable device that get dropped, kicked around in a car, etc. They should calibrate the thing before and after each shift. How hard sould that be??

They do, just like they calibrate radar detectors.

Are you sure? I don't have any experience with DUI's, thank God. I grew out of that stage long before they started cracking down.

If they calibrate on a regular basis in the county where this is happening, I'd have to say the Judge is wrong on this one.

 

[Jakebrake]

The judges are not wrong when it comes to protect trade secrets. The police and prosecuttion are doing a poor job if the only evidence they have is the breathalizer test. What about the probable cause for stopping them, erratic driving, or the administering of a balance and coordination test, called a "California test?"

 

[Genx87]

Originally posted by: 1EZduzit

Originally posted by: Genx87

Originally posted by: 1EZduzit

Originally posted by: Vic
Faulty interpretation of the law on the part of the Seminole county judges.

How the machine works (i.e. the proprietary source code itself) is not nearly as important as the fact that is has been proven reliably to work. For example, when DNA evidence is entered at a trial, it is not required that the method of acquiring the DNA evidence be fully disclosed, just that that method used has been scientifically proven to be reliable. With radar guns, it is not required that exactly how the gun works be revealed, merely that it has been operated in a manner consistent with its known reliability (i.e. calibrated, tested, operated by trained personnel, etc.).

This particular situation stinks to me. I wonder if there is another company that makes DUI analyzing software based in Seminole county.

True, but it would seem to me that there would be a difference in testing done in a lab enviroment and a portable device that get dropped, kicked around in a car, etc. They should calibrate the thing before and after each shift. How hard sould that be??

They do, just like they calibrate radar detectors.

Are you sure? I don't have any experience with DUI's, thank God. I grew out of that stage long before they started cracking down.

If they calibrate on a regular basis in the county where this is happening, I'd have to say the Judge is wrong on this one.

Friend works for the Fargo PD and when he did ride alongs in college he brought one by one night for us to try out. Needless to say we all failed but the cop who came with him explained they do have to calibrate them.

 

[InfectedMushroom]

Originally posted by: Genx87

Originally posted by: 1EZduzit

Originally posted by: Genx87

Originally posted by: 1EZduzit

Originally posted by: Vic
Faulty interpretation of the law on the part of the Seminole county judges.

How the machine works (i.e. the proprietary source code itself) is not nearly as important as the fact that is has been proven reliably to work. For example, when DNA evidence is entered at a trial, it is not required that the method of acquiring the DNA evidence be fully disclosed, just that that method used has been scientifically proven to be reliable. With radar guns, it is not required that exactly how the gun works be revealed, merely that it has been operated in a manner consistent with its known reliability (i.e. calibrated, tested, operated by trained personnel, etc.).

This particular situation stinks to me. I wonder if there is another company that makes DUI analyzing software based in Seminole county.

True, but it would seem to me that there would be a difference in testing done in a lab enviroment and a portable device that get dropped, kicked around in a car, etc. They should calibrate the thing before and after each shift. How hard sould that be??

They do, just like they calibrate radar detectors.

Are you sure? I don't have any experience with DUI's, thank God. I grew out of that stage long before they started cracking down.

If they calibrate on a regular basis in the county where this is happening, I'd have to say the Judge is wrong on this one.

Friend works for the Fargo PD and when he did ride alongs in college he brought one by one night for us to try out. Needless to say we all failed but the cop who came with him explained they do have to calibrate them.

From personal experience, as someone who has gotten a DUI, they don't calibrate those too well.
I blew a 0.121 on the freeway (yes, I already knew I was going to be above. yes i was younger and dumber). Then 10 minutes later at the station on a different machine i blew 0.071. Notice the difference? A 0.071 is a wet and reckless and not a DUI. Me being young and dumb though, I got a bad lawyer and therefore a full DUI. I'm quite sure the device they had used on the freeway was not too well calibrated.

 

[shira]

What's important is to establish the accuracy of each model of breathalizer in typical field conditions. This is not easy to do (the manufacturer would need to spend quite a lot of time and money), but it is necessary when something as important as criminal liability hangs in the balance.

Assuming a machine's reliability and accuracy were well established, and the police could produce maintenance and calibration sheets, on the actual breathlizer used, showing that the maintenance was in accordance with requirements, that the machine had been calibrated within the required time interval of the arrest, and that the calibration results combined with the arrest results and the machine's known level of precision placed the suspect's blood alcholol level at or above the criminal threshold, then knowing the machines technical details would be irrelevant.