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Judge Rules Defense Can Get DUI Machine Source Code
Posted by
kdawson
on Sat Sep 13, 2008 02:14 PM
from the weird-or-inexplicable dept.
from the weird-or-inexplicable dept.
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."
Related Stories
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Your Rights Online: Florida DUI Law and Open Source 400 comments
pete314 writes "A Florida court this Friday will hear arguments in a case where the accuracy of a breathalyzer is being scrutinized because the manufacturer refuses to release the source code. A state court ruling last year said that accused drunk drivers are entitled to receive details about the inner workings of the "mystical machine" that determined their guilt, and defense attorneys are now using that ruling to open up the device's source code.Is this part of a larger trend? With software bugs being a fact of life, consumers and organizations could claim that they need to be able to verify an application's source code before they accept that their calculations are accurate. Think credit card transactions, speed detecting radar guns, electronic voting machines..." Here is our previous story when this first became an issue in Florida.
[+]
Your Rights Online: DUI Defendant Wins Source Code to Breathalyzer 638 comments
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.'"
[+]
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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Why not prosecute? (Score:5, Interesting)
Re: (Score:3, Insightful)
They probably lost the source code and are too ashamed to tell anyone.
no (Score:5, Funny)
The problem is the source code looks something like this:
if ($suspect == black) {
print ".12";
}
elsif ($suspect == hispanic) {
print ".14";
}
elsif ($suspect == irish) {
print "ERROR";
}
Parent
Re:no (Score:5, Funny)
I'm Irish, you insensitive clod!
Seriously, though, people make a big fuss if you make fun of just about any ethnic group other than the Irish. But you can say all you want about the Irish and get away with it. Racists!
Parent
Re:no (Score:5, Funny)
you are absolutely correct, it's improper to make fun of any ethnic group, except of course the damn French.
Parent
Re: (Score:3, Funny)
But have you ever heard anyone stand up for the English? How many movies have you seen where the evil genius villain has an English accent? The world must think England is a country of Evil Geniuses and Super Spies. Oh, and drunk
Re:no (Score:5, Insightful)
Where did you get that idea? I take it you've never read the "Truly Tasteless Joke" book series?
Ethnic jokes are told all the time....it is just that if you have a group of people, they might look over to make sure no one of said ethnicity is around to hear the joke, but, that is the extent of it. Look, all of us have funny attributes and general behaviors. You just can't have too thin a skin, and need to have a sense of humour. And let's face it....these behaviors and traits didn't come out of the blue......many of them are based on real observable things in life.
Relax a little, and learn to laugh at yourself a little.
Parent
Re:Why not prosecute? (Score:5, Informative)
It doesn't require a prosecution. If the judge gets irritated enough regarding their civil contempt, he can jail them summarily until they comply. I think, however, that judges are often reluctant to do this.
I should imagine that there is a long list of well established procedures for handling contempt. While I think it's well within a judge's power to jail almost indefinitely for contempt until the contempt is remedied, I suspect that there are rules of jurisprudence that govern them otherwise to some degree.
The contempt charges can continue indefinitely by the way. They will have to reveal their code eventually or go bankrupt, and this still won't get them out of contempt. IOW, it's only a matter of time before they reveal, and they are being immensely stupid.
There is this story (urban legend?) that Larry Flint of Hustler fame was fined $10K per day for contempt once. He sent the fine in pennies. In response, the Judge said he liked pennies and would gladly accept $50K a day paid in pennies.
One should not baldly thwart the judge. Makes you wonder who their lawyers are.
C//
Parent
Re:Why not prosecute? (Score:5, Interesting)
Hmm - they don't seem to hesitate much when the issue is a news reporter refusing to testify about sources. It seems like this kind of discretion is reserved for corrupt C-level officers...
Parent
Re:Why not prosecute? (Score:4, Insightful)
If a bug is revealed in their code there is likely to be a class action lawsuit against them on behalf of everyone that was ever convicted of driving while intoxicated on account of their device. The costs associated with a single conviction far exceed the cost of one of these machines. The company would go bankrupt if that were to happen.
Parent
Re:Why not prosecute? (Score:4, Informative)
While private organizations can actually refuse to accept any current demoniation (pennies included, though it's usually $100 bills), government organizations (like the courts) cannot. If they refuse to accept the pennies which would be legal tender the debt to the government would be cancelled.
Parent
Re: (Score:3)
As another poster pointed out, the tender was not refused. It was, however, increased for showing deliberate disrespect to the court. Or so the story goes.
C//
I disagree. (Score:5, Insightful)
At some point, the suspects were caught, and the state needed to collect evidence of their BAC. Unfortunately, the state, instead of using a device that could provide accurate, verifiable evidence, used a device that, due to the lack of source code, could not provide verifiable evidence. Since the evidence is not verifiable, then the evidence is not admissible. Next time, the state should buy and use breathalyzers that produce admissible evidence.
While their action is despicable, the breathalyzer vendor didn't agree to provide their source code as part of the purchase, and shouldn't be forced to do so after the fact because the state didn't buy a device suitable for the task.
It's a bit like if I went to the state and offered to sell them a breathalyzer, and delivered a bicube blood alcohol measurement device, which is used by giving the two cubes to the suspect, having them throw the cubes on the ground, and then counting the number of dots that are showing on the top faces of the cubes. The state should know my breathalyzer isn't going to produce admissible evidence and shouldn't buy it and try and use the results in court.
Just like voting machines, states need to learn to stop spending millions of dollars on technology that doesn't work.
Parent
Re: (Score:3, Insightful)
Re: (Score:3, Insightful)
No, see, you want someone NOT hired by any governmental body so it has a chance of being less bias and corrupt.
The judge should appoint someone not involved any way in the case to inspect the code.
If the judge appoints someone to inspect the code, then the government (via the judiciary) has hired someone (the engineer). Your request is paradoxical.
Idiotic (Score:5, Insightful)
In court documents, Deputy Pima County Attorney Robin Schwartz said the defense attorneys' requests "bear all the hallmarks of a fishing expedition." Common sense shows that people rely on software and source-code information for everyday matters, Schwartz argued. One just looks at the results to know if something works or not. Schwartz used electricity as an example. "No one . . . needs to see a schematic of wiring to know that when he flips the switch on the wall, the light will come on," Schwartz said.
Um, that assumes that you are comparing the result with a known value. The point of a breathalyzer is to determine an unknown value.
Unless of course this attorney is saying that they already know the accused are drunk, in which case the breathalyzer is redundant.
Re: (Score:3, Informative)
Um, that assumes that you are comparing the result with a known value. The point of a breathalyzer is to determine an unknown value.
Unless of course this attorney is saying that they already know the accused are drunk, in which case the breathalyzer is redundant.
INAL, but I was convicted of a DWI.
The known value is an reference alcohol unit pre-applied prior to each test as a calibration, to establish that the machine is accurate. The unit is equivalent to a reading obtained in medical studies show to prove the average person intoxicated. This calibration is noted on your Breathalyzer card, along with your results (usually 2, spaced an hour apart, with different reference units), which will be noted on the complaint, and included in the arrest report.
Sixth Ammedment (Score:5, Informative)
the accused shall enjoy the right ... to be confronted with the witnesses against him; [cornell.edu]
In this case the withess is a machine, he has the constitutional right to know how that machine works
Re:Sixth Ammedment (Score:5, Insightful)
Parent
Re: (Score:3, Interesting)
Convicted of a DWI.
What I found most intellectually troubling is that, in AZ (among toughest DUI laws in the country), the violations schedule awards the most "points" for potential crimes - actions that are crimes because of their potential to cause harm, property damage or death. The next "rung" down on the "ladder" includes crimes that result in harm, property damage or death.
I know I was wrong, and I no longer drink at all. Drunk driving is a serious problem, that should be addressed.
However, the way i
Re:Sixth Ammedment (Score:5, Insightful)
If the police officer relies on the reading from the device, then it is not really the police officer's judgment being presented, but just a re-iteration of what he read. Is the police officer able to testify about the accuracy of the device? Is the police officer able to testify about whether a device driver that reads values from an ADC register is doing so with the correct clock synchronization to ensure that does skew the time differential meaning of the results?
Parent
Re:Sixth Ammedment (Score:4, Interesting)
If the witness in my case is a human, do I have a constitutional right to know how the human works?
Parent
Re:Sixth Ammedment (Score:4, Informative)
Parent
Well, there's one solution to all this ... (Score:5, Insightful)
Furthermore, the people responsible for the decision to market the Intoxilyzer should be held accountable for the device's failures, especially if they sold it knowing that the design was defective. Sure, it costs more money to properly certify a design, and to implement effective quality controls. Still, if auto manufacturers have to suffer multi-million-dollar lawsuits over tiny flaws in vehicle design, these guys should hardly get off scot-free.
A few points.... (Score:5, Interesting)
Re:A few points.... (Score:4, Interesting)
This should then result in police departments returning these defective devices for a refund, and further lawsuits as a result. I wonder if they care more about their IP than selling a product. What we need to do is get the word out to all police departments and prosecutors that they face serious hurdles keeping real offenders off the streets if they use this company's products. Let these company executives choose between being able to prove the accuracy of the device in court (if it is so) or going out of business from lack of sales in all 50 states.
Parent
Re: (Score:3, Insightful)
The result? Hundreds of DUIs being thrown out in Minnesota alone. Nice to see that the company cares more about their IP than the safety of our roads.
Law enforcement will soon come to grips with the fact that it cannot get a conviction with CMI. Law enforcement will then buy other equipment or use some other sobriety test.
At that point, CMI will be able to sell DUI products only in states that have already ruled that the source need not be turned over. Eventually, they will go out of business or cave.
Re: (Score:3, Insightful)
... as opposed to the defense attorneys who will do their jobs?
Fixed that for you.
Re:A few points.... (Score:4, Interesting)
A defense attorney who will do "anything" to get his client off is not doing his job and should be disbarred. A defense attorney who will do "anything within the bounds of the law and legal ethics" to represent the "best interest" of his client is doing his job.
Sometimes the right thing for your client is not getting away with it.
Parent
Re: (Score:3, Insightful)
If the device can't be proven to be accurate, then it's no different than an expert witness who testified against the defendant later refusing to disclose his credentials that would, in theory, show him to be an expert in the field. Courts do throw out such testimonies, and sometimes even declare mistrials (if the judge feels the fraudulent testimony cannot be ignored by the jury). And such "experts" don't get used, anymore (if not actually jailed for contempt).
Of course defense attorneys try to get their
Re:A few points.... (Score:4, Insightful)
Getting their clients liable for huge amounts of fines is hardly the outcome a lawyer would aim for... Any lawyer would probably recommend they turn over the code so as to comply with the court order.
Why is it so important to them not to turn over the code? They must have something big to hide, because handing over the code to the court so the defense can examine it is hardly a huge burden... Not like they're being compelled to release it to the general public.
Parent
Re: (Score:3, Insightful)
The components have established tests to ensure they are not defective and haven't been tampered with, especially if they are off the shelf components which are also used in other devices. Since they are components, intended for third parties to use to construct larger devices, their function and interfaces will be well known and documented.
The software is presumably bespoke, and is an unknown quantity, it could also potentially be used to hide backdoors. It is not intended to be sold as a separate componen
Keep this idiot away from any kind of electricity (Score:5, Insightful)
Schwartz used electricity as an example.
"No one . . . needs to see a schematic of wiring to know that when he flips the switch on the wall, the light will come on," Schwartz said.
And what would this guy do if he finds that sometimes the light doesn't come on? Or the light goes off on its own? Or comes on by itself? Or flickers and buzzes? An electrician would need to know the wiring involved. A diagram or schematic would be used, if available, or else he would have to trace the wires (reverse engineering).
And this analogy doesn't even apply to a measurement device. What if he uses a volt meter that says the voltage is 120 volts ... does he assume that because the meter deflected that it's reading is correct? It could be a 240 volt circuit that has each wire only 120 volts relative to ground.
Any device that cannot be independently verified as operating correctly at all times should not have any of its results submitted in court for any purpose other than to argue that the device is defective in a case against the manufacturer.
Re: (Score:3, Interesting)
That's how things are wired in the USA for 240 volt circuits. The transformer secondary is tapped at the midpoint and grounded at that tap. All 3 wires are supplied to the building. 120 volt circuits can be wired between the midpoint neutral and either of the other wires. 240 volt circuits can be wired between the 2 non-neutral wires. While AC is, of course, alternating polarity in time, at any one instant, one of those wires is positive while the other is negative relative to the neutral. So the volt
In NYC The Police Screw You (Score:5, Interesting)
And I know Pima county well enough to know not to rely on what their attorneys say as the final word on anything.
"Not a trade secret" (Score:3, Insightful)
While I agree that government should not use "expert testimony" that can't be reproduced, I don't buy the following logic (from the story, haven't read the opinion yet):
So: if it's not patented and not under copyright then it's not a trade secret? Usually a company gets a choice: copyright/patent (publish but get protection) or trade secret (can't publish). No patent or copyright holds in favour of trade secret protection.
The real ruling should be that while the company should be free to keep the workings of their device secret, the government should not be allowed to rely on evidence produced via devices whose inner workings are secret.
Overdue ruling of common sense (Score:5, Interesting)
I work in the State of Florida as a police officer, and I arrest and charge people with DUI on a regular basis.
In my opinion, this ruling was exactly on the money, and far too long in coming. If a company refuses to disclose evidence, the State should immediately stop using their product to obtain evidence.
As a certified expert witness, I am able to testify to the impairment of a subject without the need of a breath analysis to verify. About 20-30% of the cases I testify in have no breath results because the defendant refuses to provide a breath sample. We only forcefully obtain samples (of blood, not breath) when a traffic homicide is involved.
If the evidence is faulty, I *need* to know. I can only uphold my oath of office if I can testify in good faith that I am using proper methods of obtaining evidence. If this company is witholding vital information, they should not be allowed to sell their product to law enforcement.
Screw the source code... how is it tested? (Score:5, Insightful)
The bottom line is that, particularly in an embedded device working with sensors, many problems will simply not be apparent from the source code, no matter how good you are. The only way to know that this device gives good data is to give it the same sort of rigorous testing we give (for example) new drugs and electronics that go into airplanes and military hardware.
I would want to see this device subjected to adverse environments, radio interference, being operated on the side of the road, etc. etc., and still reliably producing results that closely correlated with those produced by reference tests (i.e. blood alcohol tests). If this sort of testing is done for each and every revision of the device's firmware then the company is right, source code is irrelevant. This isn't like a voting machine... it has a discrete, limited number of inputs, no operating system, and a small memory pool--the only way to tamper with it would be to alter the firmware, and that can be checked with a simple checksum. And if this sort of testing isn't being done, then these devices are worthless and shouldn't be used to send someone to jail, because anyone who knows anything about programming knows that any project of any complexity will have bugs, and this sort of testing is the only way to catch them.
So... does anyone know how these devices are tested? How rigorous is the testing? Is it serious, covering all conditions, and all revisions no matter how minor, or is it the usual "get the bad guys, screw civil liberties" sort of half-assed stuff that we've come to expect from American law enforcement?
I have no sympathy for drunk drivers... but I don't want anyone sent to jail on evidence that even MIGHT be false.
Re:cheers! (Score:5, Insightful)
This isn't about OpenSource.
It's about making sure that the device providing so-called scientific evidence for use at trial is producing evidence properly and -accurately-.
I'm surprised it isn't already on the books that source code for devices such as this be disclosed for that purpose already.
Parent
Re:cheers! (Score:4, Interesting)
Then there needs to be a way to prove that the source code provided matches the binary code being executed. But if they can't provide the source code, then there's no reason at all to believe that it's honest.
Parent
Re: (Score:3, Insightful)
Is there a legitimate interest? (Score:5, Insightful)
The software should be available to those who have a legitimate interest. The source code for ANY machine being used to gather evidence should be available to the defense. The judge in such a case should get to decide if the defense needs to see the source code. If closed source software is leaked to the public, then some sort of sanction would be appropriate.
This raises the issue of software on election machines... The entire voting public has a legitimate interest about haw their votes are counted. The only way around this is that the software running should be publicly available. It doesn't have to be open source as far as copyrights are concerned, just the public should have the right to examine the source code.
Parent
Re: (Score:3, Interesting)
Re: (Score:3, Insightful)
However, unlike the Intoxilyzer 5000, it isn't patented, so defense experts can't obtain the diagrams and source codes needed to figure out exactly how it works, Nesci said.
I think they're using this as the reason to keep the code secret.
Re:cheers! (Score:5, Informative)
That being said, in Florida, even if you are below the legal limit, you can still be charged with driving while impaired if it can be shown that your driving was impaired.
One of my closest friends is a Criminal Defense Attorney and he tells everyone he knows, "Don't drink a drop and drive". Also, you are within your legal rights in all fifty states to request a blood test instead of the breath test. You will be booked, but the results will be indisputable in court. So if you're sure you only drank one beer it will be dead on.
Parent
Re:cheers! (Score:5, Informative)
Even in such a simple case there are many things it should be testing. Is the A/D output sane? Does it take 3 quick samples while someone is blowing and average them or just take it once (which could be wrong for some reason)? According to the article, it doesn't look like it does. It calibrates the wind sensor, but doesn't check that the calibration is sane. It doesn't report errors unless they happen 32 times in a row. It disables the watchdog timer. It disables the interrupt for illegal instructions. It doesn't meet any coding standards. It contains code with things like "this is temporary for now" in it. There is an obvious reason why they didn't want the code released.
This was a partial summary of another breathalyzer source code that was opened up in another case. This has nothing to do with open source this has to do with software that is half-ass'd but determines if someone has to go through years of court hearings, meetings, suspended license, and a whole waste of money because some company rushed their software engineer to write code that may be giving wrong results all together.
This code should be open to public discrimination, there would be no trade secrets if the law protects the code from someone else using it after its been opened to public discrimination because every company would have to disclose their software.
Parent
Re: (Score:3, Interesting)
Sorry, in today's world there are two sorts of companies: those with IP and a product and those with a product.
The first sort exist in the US and Europe. The second sort are in China, Singapore, Indonesia, etc. Taiwan and Japan are sort of a mix.
Once you let the IP out, the second sort of company can easily eliminate the first sort from the market. They can make the product cheaper, faster and more efficiently and they have zero R & D costs. Sure, you can use all sorts of things like patents and copy
Re:echo round(rand(1,40)/100."%"; (Score:5, Funny)
Clearly you have had no experience in the Lisp.
Parent
Courts deal with this kind of thing a lot (Score:3, Insightful)
They just have an expert witness examine the code. It would be someone with experience in the kind of assembly code involved, and experience developing firmware for measurement devices like this. It is the testimony of the expert, not the source code itself, that would be presented to the jury. Just because you can't grok assembly code doesn't mean no one can. Obviously someone had to write the stuff.
Sadly, it may be the case that this manufacturer hired someone like you to develop it, and it was their
Re: (Score:3, Insightful)
Your assumptions that the manufacturer of the tester wants a fair test is unverified.
I'm not saying that this is the case, but what if the manufacturer, who is selling to law enforcement, wants to build a tester that will err on the side of too many positives? For example, what if the auditing the source revealed that the tester takes 5 reading