Breathalyzer Source Code Ruling Upheld 520
dfn_deux writes "In a follow up to a 2005 story where Florida judge Doug Henderson ruled that breathalyzer evidence in more than 100 drunk driving cases would be inadmissible as evidence at trial, the Second District Court of Appeal and Circuit Court has ruled on Tuesday to uphold the 2005 ruling requiring the manufacturer of the Intoxilyzer 5000, Kentucky-based CMI Inc, to release source code for their breathalyzer equipment to be examined by witnesses for the defense of those standing trial with breathalyzer test result being used as evidence against them. '"The defendant's right to a fair trial outweighed the manufacturer's claim of a trade secret," Henderson said Tuesday. In response to the ruling defense attorney, Mark Lipinski, who represents seven defendants challenging the source codes, said the state likely will be forced to reduce charges — or drop the cases entirely.' ... What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret. It means the state has to give full disclosure concerning important and critical aspects of the case."
At last... (Score:5, Insightful)
Finally
Guess there are some judges out there that understand justice.
Re:At last... (Score:5, Funny)
Fixed that for you.
Re:At last... (Score:4, Funny)
Re: (Score:3, Informative)
Around here, cops typically call in a request for a 10 and 20 (registration and owner check) before they call the 7 (traffic stop). It's a matter of safety. If the 10 comes back to Guido The Enforcer you call for backup before you make the stop. If it's Gramma Squeekyclean Driving Record, you do only the normal felony stop.
Re:At last... (Score:4, Interesting)
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Re:At last... (Score:5, Insightful)
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I read recently that Brazil has one of the toughest laws in the world -- 0.02%, where in the US it's normally 0.08 or possibly 0.05...
I say good on 'em. As the commercials go, "If you drink, don't drive." To that can be added, "If you drive, don't drink, not even one serving! That's what designated drivers and taxis are for!" To that I might add public transit, at at least the lower levels. And, that's exactly what's beginning to happen in Brazil. Taxi use is up; designated driver use is up, altho the
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If a company makes a product and claims that it is more accurate than the competition, that claim should be tested. If it doesn't make the claim, then it should be tested anyway. A justice product like this must be held to a standard: if it doesn't work as the legal system believes that it works, then it should not be used as evidence.
Of course, I don't really see what this has to do with source code in this case. Sure, someone might find a bug--if that's what happened, then cool. But what matters is
Re:At last... (Score:5, Insightful)
Now to get this recognized for voting machines.
Though that will be harder because while more obvious it has far more money on the other side.
Re:At last... (Score:4, Insightful)
It's only fair if a piece of DNA can put me in jail I should be allowed to read the algorithm that was used to infer that my DNA matched the strand that was put into the machine.
Re: (Score:3, Insightful)
"It's only fair if a piece of DNA can put me in jail I should be allowed to read the algorithm that was used to infer that my DNA matched the strand that was put into the machine."
Like 99.999% of the public would understand it. Besides, it's a lot more likely for a tech to grab the wrong sample, contaminate the sample, or simply have been given the wrong sample. Carried to its illogical extreme, one would also need the complete engineering blueprints for a given machine AND for its components, processor chi
Re:At last... (Score:5, Insightful)
I believe the point of this ruling is that, without the source code, they can't legally prove that these people are in fact drunk drivers. So you'd be just as accurate to say: "Hooray, another innocent driver back on the streets!"
Of course, this is Florida, where people drive like they're drunk even when they're not.
Re:At last... (Score:4, Funny)
Re: (Score:3, Informative)
Back when I worked on breathalyzer systems for people with suspended licenses, if we ever needed to 'test' a unit all we did was take a sip of mouthwash, spit it out, and blow. Pegs the meter every time. Highest I ever blew was a 0.38... that's damn near dead.
Re:At last... (Score:4, Insightful)
And how do you know they are drunk? Oh, the black box says so? Well, that's good enough for me!
I'm going to start selling little boxes with a tube on the side and a display that always displays a random number on the side from .08 to .15 when you blow into the tube. And when you get arrested due to my little black box, you can't ever ask me how it works, because my 'trade secret' is more important than your innocence.
So if Florida uses Microsoft Windows? (Score:4, Funny)
Someone is going to figure out how to file a defense involving the release of Microsoft Windows, I just know it.
Re:So if Florida uses Microsoft Windows? (Score:5, Funny)
"I did NOT willfully download child pornography. My Windows operating system hijacked my computer, downloaded the material, and brought it up in Internet Explorer every day between 6 and 10 PM on weekdays, and between 7 AM and 10 PM on weekends, holidays, and days I had sick leave."
Re:So if Florida uses Microsoft Windows? (Score:5, Insightful)
That's enough to raise reasonable doubt.
Re:So if Florida uses Microsoft Windows? (Score:5, Informative)
while this is unquestionably true as a question of fact let me assure you that at least one court of law is more than capable of ignoring it - this exact thing (unpatched windoze box got p0wned) happened to my sister-in-law's brother back in '02 and he's currently on federal holiday in Mississippi (at least it's the "country club"/minimum-security kind) and facing a lifetime of being registered and presumed to be something he clearly isn't...
even if you don't care about the injustice of ruining the life of a (then) 19-yr-old you don't & likely never will know (I'd only met him 2x before that happened) you might want to consider the six-figure sum of you tax dollars that's been shoveled into the furnace prosecuting and imprisoning him but, hey, we got to "think of the children!!!", right?
Re: (Score:3, Funny)
we got to "think of the children!!!", right?
This could be of use...
"Think of the children! Ban MS Windows!"
It's a good day. (Score:5, Insightful)
Re:It's a good day. (Score:4, Insightful)
If the methods are correctly verified, I don't care whats in the "black box" just that it was verified, and unchanging in it's processing.
Software is not statistical. That is, it's quite possible for a piece of software to run a 1000 times giving one result and on the 1001 time give a completely different result (e.g. the millenium bug or a rare race condition). Because of this no amount of black box testing can prove closed source software is correct. Even statistically correct because they have no way of reproducing the exact conditions at the time of the breathalyze (e.g. air temperature, unusual chemicals in air, unusual subject, unusual breathing, different humidity, different usage history, different key press timing, low battery, physical shock, manipulative policeman etc. etc.).
Due to bad coding practices race conditions are extremely common in software. You've seen one every time a program acted even the tiniest bit different on two different runs with the same conditions. Closed source covers a multitude of such sins.
Particularly in legal cases there needs to be accountability, and closed source software means there is no accountability. Source code doesn't solve all problems (bugs and race conditions can be obscure) but it is a helluva a lot better than closed source and black box testing.
---
Don't be a programmer-bureaucrat; someone who substitutes marketing buzzwords and software bloat for verifiable improvements.
Huh (Score:5, Funny)
There's a joke here about the importance of open-source breathalyzers vs. voting machines but I'm too full of outrage fatigue to make an effort at it.
Corporations must show responsibility as well: (Score:4, Insightful)
As pesky as the Bill of Rights can be to swift justice and severe vengeance, I do remember something about the the accused having a right to face their accuser. If the Intoxilyzer uses buggy firmware that results in inaccurate readings, then the accused has every right to question it. The company that makes the Intoxilyzer must be held responsible for its actions as well. Someday, somewhere, some company will step up and say, "Yes, we knew our product was faulty. But we have shareholders who will sell our stock in a heartbeat if we miss our mark in any quarter."
Holding both the accuser and the accused responsible for their actions is what helps create a society based on the rule of law. Otherwise, we'd be a police state. As a practicing trial attorney I *much* prefer the former.
=Smidge=
Re:Corporations must show responsibility as well: (Score:5, Insightful)
pesky as the Bill of Rights can be to swift justice and severe vengeance, I do remember something about the the accused having a right to face their accuser. If the Intoxilyzer uses buggy firmware that results in inaccurate readings, then the accused has every right to question it.
Don't even argue that it might be buggy.
"If I touch this technisphere to the forehead of the accused and ask a question, it will tell us if he is lying"
*performs action and asks question*
"Outlook hazy, ask again"
In all seriousness, what would prevent a black box from doing any sort of action if it were treated in any manner outside of it's original qualification tests? Without the code, you can't know that. It could give a 0.1 BAC boost if you hold it at a 10% angle while administering the test.
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Or to pick another illustration, what about the error handling?
Google released some data about their disk farm which included sensors reporting drive temperatures of ten thousand degrees. If the sensor in the breathalyzer freaks out that badly, does the firmware
o Clip it to the maximum value?
o Report an error?
o Reuse the value from just before it became clearly nonsensical?
Re: (Score:3, Interesting)
Uh... they do. They have the same sort of records for the breathalyzers. I was "fortunate" enough to be chosen for a DWI jury in Texas and we were offered testimony and evidence of exactly that.
Sadly, we had a hung jury because two jurors thought he "didn't look that drunk", even though he was clearly not behaving the way a sane, sober person would act in a situation with that much on the line and he blew more than twice the legal limit (while under age, no less).
Equipment = voting machines? (Score:5, Insightful)
I know the "related stories" says this too, but just to get the ball rolling:
What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret. It means the state has to give full disclosure concerning important and critical aspects of the case."
So, will this mean voting machine source code will have to be disclosed?
Personally, I'm most surprised that:
a) Governments don't require source code disclosure, at least for purposes of review, when they ask for bids or shop for equipment/software,
b) It's so hard for them to find someone willing to meet a).
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Re:Equipment = voting machines? (Score:4, Insightful)
Well, it might be a good incentive to companies trying to sell Solaris, Linux or other open source solutions...
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To clarify, the scantrons are technically still electronic voting machines (but with a paper trail), Florida just got rid of touch screens. Many Florida counties have been using these machines since well before the 2000 fiasco.
Open Source (Score:3, Interesting)
The thing I like about open source is that everyone can make the software better. Why a company wouldn't want to produce source code, is beyond me. I think they fear that they will be viewed as incompetent when several mistakes are found in their code, or that sneaky randomizer function call rears its ugly head.
In all seriousness, companies would do well to realize that open source increases revenues by enabling a larger FREE workforce to do your work for you. Put aside your griefs with secrecy, unless of course your code doesn't work, or you stole large chunks of the code, and fear the legal ramifications.
I'd hate to be in their position, either way.
Re:Open Source (Score:5, Insightful)
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Re:Open Source (Score:4, Funny)
personally, I'm looking forward to being a tester on this project.
Hahahaha. (Score:3, Interesting)
No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over. Even if the prosecutors move to blood test, the defendants will require a medical doctor or lab technician to testify as to the nature of the exam and how the test works, and perhaps the manufacturer of the reagents used in the tests have to verify that they are what they are. Tons of money have to be spent by the DA's office, which means higher taxes. Meanwhile, prosecution of drunk driving will go down, and more drunk drivers will be on the streets.
Everyone wins!
But ask yourself: if a judge dismissed exculpatory DNA evidence because the defense didn't procure a geneticist/scientist to testify on the stand, what would you say?
Re:Hahahaha. (Score:5, Insightful)
Re:Hahahaha. (Score:5, Insightful)
No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over.
I think that what it actually means is that a bunch of people who supposedly violated some arbitrary limit on the limit of a specific substance in their bloodstream might have their lives un-ruined.
Is this going to matter for the people who were obviously intoxicated? No. This is going to matter for the people who passed a field sobriety test, didn't appear to be intoxicated, but admitted to having a beer that night and were required to take a breathalyser.
I don't know about the rest of you, but I live in Phoenix, AZ. We have got some of the most absurd drink driving laws in the country. They recently changed the law from .08 to "impaired to the slightest degree". Thats right, boys, did you use mouthwash before heading out tonight? Well, you're spending a month in jail and losing your license.
Wanna cut drunk driving? Keep the f*cking public transportation system running until 3:00am. Provide a free (or at least cheap) taxi service. Don't make a bunch of "creative" parking laws so that if you decide to take a cab home your car gets towed.
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No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over.
The law protects everyone.
You don't get to bend/break it because you think/know someone is a criminal.
I'm not sure I can overstate just how important Due Process is to our legal system.
But ask yourself: if a judge dismissed exculpatory DNA evidence because the defense didn't procure a geneticist/scientist to testify on the stand, what would you say?
I'd say that's either a sign of ineffective counsel or that you don't have enough money to mount a vigorous defense. There are legal avenues for addressing the injustice of the first situation, but the second is entirely your own problem. Either way, you can bring it up on appeal and try to get a new trial.
Re:Hahahaha. (Score:4, Insightful)
Can you imagine death-penalty murder trials with "we know you did it because this machine we bought from MegaProfitTechCo analyzed the crime scene and says you're guilty." "How does that machine even work? DNA profiling?" "Can't tell you, it's a trade secret and very complicated, but it took a piece of evidence and said you're guilty."
Re:Hahahaha. (Score:4, Interesting)
Something similar happened to me this week (where the similarity increases if you replace "murder trials" with "attempt to pay auto repair bill"). I wrote a check to pay an auto repair bill, and the mechanic taking the check dials someone, reads the check data into the phone, and tells me my check has been "rejected". I've got perfect credit and lots of cash in the bank, mind you. I take the phone and speak to the other party, which I think was some credit agency like experion; a woman in a flat, robotic voice informs me that their "computer model" which takes in "a number of factors" cannot "approve the transaction at this time". She says it does not have anything to do with my supposed bank balance. I ask her if she can disclose what factors are in play in this decision, and she says no, she cannot.
After the call, I have no recourse but to pay by credit card. I don't like paying by credit card for various reasons that are my own, but more to the point I believe I should have the ability to pay by check if I so desire and I'm in good standing.
I told the mechanic I didn't particularly blame him personally, but I did blame his organization for working with an entity that, in this case, made me feel like a criminal. I told him the upshot was that I'd have to take my car to him less frequently.
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It means a bunch of drunk drivers will be on the streets free to run whoever they want over... Meanwhile, prosecution of drunk driving will go down, and more drunk drivers will be on the streets.
I respectfully disagree. First, Florida has a waiver form a driver suspected of being impaired beyond their normal faculties may sign denying the breathalyzer, blood, or urine tests. One might initially argue this would have the same effect. However, the consequence of not taking this test is having your license suspended for 1 year. So even if this somehow helps you manage to avoid the normal 2 weeks of county jail time, you have a difficult year ahead of you.
You also need to consider that if you go to
Fish. (Score:5, Interesting)
I will bet money on one of three outcomes:
1. Breathalyzers cease to be used.
2. The source code will be released and showed to have MAJOR flaws or an algorithm that is not scientific at all.
3. The source code will be suddenly patched and every system will be required to be updated. The "new" source code will be released. Prosecution rates plummet, for some "unknown" reason.
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Re:Fish. (Score:4, Insightful)
Actually, what I see happening is either:
1. Source code shows major flaws and the evidence is tossed out.
2. Source code shows no major flaws and the evidence stands.
In the case of #1, it is a win for society because the company will be forced to either fix their product or risk going out of business. What police station would want to use a breathalyzer that was proven in court to be flawed? Case #1 might be somewhat frequent initially, but will become rarer and rarer.
In the case of #2, it is a win for society because the validity of the breathalyzer software will be affirmed. As case #1's work their way through, the software will be fixed more and more until case #2 is the predominant case.
Either way, society wins. The alternative is a black box device that *might* function the way the makers say it does but might have unknown bugs.
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Why are they using a breathalyser as the final form of evidence anyway? In Australia they use the breathalyser as a quick and cheap test to see if you are over 0.05 (the legal limit for fully licensed drivers). If the test says "yes", they then withhold you and perform a blood test to get an accurate reading, the latter of which is used for the actual evidence. So if you do use a mouthwash just before the breathalyser, the blood test is going to prove that you are not drunk.
Double-edged sword... (Score:5, Insightful)
All software contains bugs. The defense will find some, and even if they only affect accuracy at the 7th decimal point, the case will get thrown out by a jury based on reasonable doubt. And this doesn't apply just to the current case, but to nearly any legal case using machine-generated evidence. The court allows DNA evidence? How about the firmware in the sequencing machine? Drug test came back positive? Let's see how Agilent's HPLC code rounds in integration.
Now, in some cases (*cough* Diebold *cough*) we may have a valid gripe against a closed-source implementation. But in most cases... Not to make this a case of "for the children", but do you want drunks behind the wheel? Screw the children (calm down, Mr. Jackson, I didn't mean it like that), I don't want to DIAF because someone can't stop at two beers.
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In the end, you don't need a breathalyzer result to obtain a DUI conviction. Many cop cars are equipped with cameras now, and a simple 30 second clip of a car weaving across lanes along with the Officer's testimony will convict the truly impaired.
The breathalyzer was just the 'slam dunk' of most prosecutions. 0.81 BAC according to the breathalyzer and w/o a slick attorney you were going to be convicted. Is it too much to ask that we don't rely on metrics for all of our laws? It is nice to know that if
Re:Double-edged sword... (Score:4, Funny)
Somebody with a 0.81 BAC probably has to worry more about a visit with a coroner than a judge or a slick attorney, whether they've been driving or not.
Re:Double-edged sword... (Score:5, Insightful)
It's far worse to punish an innocent man than to let a guilty one go. Someone who habitually drives drunk will be caught eventually, even with a high standard of proof. On the other hand, an innocent, responsible man's life could be entirely ruined by a false conviction.
If we were determined, we could get 100% of all criminals off the streets; but in doing so, we'd jail so many innocent people that the whole program would be a travesty.
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Not exactly... (Score:5, Informative)
What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret
No, what it means is that corporations that sell equipment THAT PRODUCE EVIDENCE TO BE USED IN CRIMINAL CASES can't hide behind trade secret laws. It's a very narrow set of circumstances. If the machine isn't used to produce criminal evidence, it isn't affected. Things like radar guns and red light cameras could be affected by this ruling. General consumer products are not.
The breathalyzer is effectively acting as a witness against the defendant in a DUI case. The defendant has a CONSTITUTIONALLY GUARANTEED right to cross-examine witnesses and challenge their credibility and accuracy. In the case of a machine, this can include subjecting the machine's design to scrutiny by a defense expert.
Seems pretty open & shut to me: if they don't disclose the engineering data necessary to validate the accuracy of the machine, then the evidence produced by the machine is inadmissible.
Since DUI is based on specific blood alcohol levels, they would have to drop those charges and settle for something where they could get a conviction based solely on the arresting officer's eyewitness testimony (EG reckless driving or other specific moving violations).
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Both [Judge] Henderson and Sarasota County Judge David Denkin ordered CMI to divulge the code, but CMI said it is a protected trade secret.
Although Henderson and Denkin agreed, they determined the refusal was a violation of due process. The judges ruled the breath-test evidence should be tossed from trial.
I don't see anything in TFA that says CMI was forced to disclose their code, or was being held in contempt of court for failing to do so. The ruling was that UNLESS they disclose the code, the output from the machines is inadmissible as evidence.
Of course by failing to disclose their code, they've effectively put themselves out of business (at least in Florida), as their main (only?) customers won't buy their product if it's output is not admissible.
Get out of speeding ticket (Score:3, Insightful)
You see here Judge, that the company is using the improper register d0 when they should have pushed d9 onto the stack and did a bshd9 2 (bitshift register d9) to multiply the input radar signal level by 2.
Code is great, what about hardware design? (Score:4, Informative)
I agree that the software will tell part of the story on whether or not the device is accurate, but I'd be interested in examining the hardware too. It is easy to imagine that varying conditions (temp, humidity, altitude, exhaust, smoker lung, etc) could alter the operation of the hardware even before the software comes into play. How have these variables been neutralized? Casting doubt on the device would be easy.
Casting doubt is what the defense is interested in, but what the public should really be interested in is the test data (from an independent third party). Have they conducted appropriate tests across sufficient body types and environmental conditions? Lets see the results.
Breathalyzer Results Should NEVER be Used in Court (Score:3, Insightful)
Re:Good luck with that! (Score:5, Insightful)
No. Did you bother reading the summary? The judge ruled the defendant in a criminal case has the right to review the source code of the machine that was used to convict him.. It's not like they ruled that CMI had to open source the thing. That seems pretty reasonable to me.
Re:Good luck with that! (Score:4, Insightful)
What about providing proof that it was the version of the source code that was made available for review that was running on the machine at the time the test was administered?
Re:Good luck with that! (Score:4, Funny)
I'll go down to Florida tonight, get smashed, walk up to the first cop I see and demand the test. Three short months later me and my chemistry degree have a competing product on the market.
If you walk up to a cop and he arrests you for DUI, you may have a decent false arrest case on your hands - Forget engineering a breathalyzer.
Re: (Score:3, Interesting)
If you walk up to a cop and he arrests you for DUI, you may have a decent false arrest case on your hands
I don't know. These days you can get a DUI for driving a lawn mower, bicycle, horse or wheel chair and even for not driving your car by sleeping in it while drunk. How long can it be before the MADD morons get sneakers included.
Re:Good luck with that! (Score:5, Interesting)
I don't know much about breathalyzers besides what they do. Is the source code really the limiting factor to you making a competing line of breathalyzers? I would think the sensor that measures the alchohol on your breath would be the most expensive and most difficult to manufacture part of the whole thing. Perhaps wrongly I would have assumed the source code would be the third easiest thing to make, behind the case for the thing and the hose you breathe into. In other words, I would have assumed that the source code would have been nothing too secret, while the actual sensor was what they spent a lot of money developing.
Of course, if the source code were very simple, I guess the company probably would have released it rather than facing the 2 mil fines. Or maybe that's just typical corporate arrogance.
Can someone explain this to me (hopefully keeping in mind that I have no background in coding)?
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The source code likely includes some tables & equations for analyzing the sensor values. Those are probably pretty proprietary, and required a good amount of research & development to get right.
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The sensor isn't really anything special anymore. Alcohol gas sensors are commodity item and easily had on the parts market. Typically they just output some analog voltage that varies according to the level of alcohol detected. That voltage is subject to calibration and then runs through an ADC to the actual code that maps voltage directly to some magic BAC number. Up until the voltage output, it's all easily tested. The calibration instructions I'll assume are also easily provided by the manufacturer since
Re:Good luck with that! (Score:5, Informative)
The parties are not the ones who get to see confidential business information. Their attorneys and experts do. For example, I just worked on a case where both sides had to produce competition-sensitive documents to the other side in discovery. These documents were clearly marked "CBI," and I would have been in very serious trouble if I had sent these to my client. If I had done so on purpose, I could possibly have been disbarred. So no, the criminals probably won't get to see this source code. Their attorneys will give it to their experts, and if they find something really useful, they will ask the judge if they can pretty please use it in open court after stripping away anything superfluous to the reason for which it is being used. That will not be enough for their clients to make a competing product.
Re:Good luck with that! (Score:4, Insightful)
Do you have some sort of evidence to support the idea that people who drive while intoxicated are more likely to infringe copyrights than people who don't drive while intoxicated?
Re: (Score:3, Insightful)
Re:Good luck with that! (Score:5, Insightful)
Honestly, it would probably be easier just to write it yourself. It's not some super-top-secret bit of magic code that no one else could reproduce. Have you ever tried working with someone else's code, with know knowledge or insight into the project?
It's not pretty. And this isn't an open source project with a wiki and people contributing to documentation etc. It might have been this one guy who worked there 5 years ago and never made a single code comment.
The code that does the actual work (the calculations) is probably very small. Most of it is probably written to interface with the device. And unless you are getting their exact device -- or one with identical specifications -- then you're going to have to rewrite that anyway. And I suspect they DO have a patent on the device, even if you did somehow get the code.
Re: (Score:3, Interesting)
It's not just the code that does the calculation. It's the firmware that gathers the analog data from the sensors and converts it to digital. It's the software that is used to perform the calibration. It's the display software that interprets the results and puts them onscreen. Heck, it's even the control menus that the cops use to identify the test they want to perform.
There are multiple possible points of failure in the breathalyzer that could affect the displayed reading, and given the typical QC of most
Re: (Score:3, Insightful)
To date, CMI is facing more than $2 million in fines because of their refusal to release the source codes, Lipinski noted.
Looks like it's not over yet. Everybody knows breathalyzers are shit anyway.
If you're pulled over and suspected of DUI, then don't take the damn test, beacuse the accuracy of the breathalyzers are questionable. Plain and simple. Keep your mouth shut and let 'em take you to the station, but don't take the blood or the piss test(they can't legally make you) later because your results may be worse and the the only thing that matters is your BAC at the time you were driving, not later at t
Re:Good luck with that! (Score:5, Insightful)
That is sage advice for those of us who live in states with implied consent laws.
Re:Good luck with that! (Score:5, Insightful)
That is sage advice for those of us who live in states with implied consent laws.
Either way you are going to lose your license. The question is would you rather lose it through a civil process at DMV or would you rather lose it through the courts and get the added "bonus" of a criminal conviction? The best solution is obviously not to drive drunk but every lawyer I've ever talked to says to refuse the breath test if you've been drinking.
Re: (Score:3, Informative)
And if we haven't?
If you haven't then why is the cop asking you to take one? Stories of police abuse notwithstanding I think you'll find that most members of the police are fairly reasonable and not given to randomly asking people who don't smell like booze to submit to breath tests.
IANAL but if they asked me to take a test and I hadn't been drinking I would submit to it. If it comes back with a false positive then demand a blood test. They aren't known for being highly accurate devices but how likely is it that it's goi
Re: (Score:3, Insightful)
in my state you can refuse - but if you do you automaticly lose your license for 6 months.. no you don't get the DUI/DWI on your record just the lose of license - what you can do how ever is refuse a breathalizer on the basis that it is not acurate to what definds drunk driving which is blood achol level - and then say you are willing to go to the ER and have an actual blood test for it. as long as you offer to take you blood test you can deny the breath test without penatly - although if when they do the
Re:Good luck with that! (Score:5, Informative)
Maybe this depends what state you are in... In California, you sign a contract to get your drivers license that says they can breathalyze or blood test you for BAC on reasonable suspicion of drunk driving and you waive the right to refuse.
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Re:Good luck with that! (Score:4, Informative)
You do not have the right to refuse the test, but you do have the right to insist on them taking a blood test rather than a urine or breathalyzer test, and you do have the right to refuse the roadside ballet they try to make you do. I don't drink, but if I did, I'd insist on a blood test for two good reasons: It is going to be the most accurate thing, and arranging for it takes longer, giving your liver more time to reduce your BAC.
Re:Good luck with that! (Score:5, Informative)
Re:Good luck with that! (Score:4, Insightful)
Always refuse.
Presumptive admission of guilt (Score:5, Interesting)
If you're pulled over and suspected of DUI, then don't take the damn test
In many states, refusal to take a breathalyzer test is legally presumed an admission of guilt. You'll have a much harder time reversing a conviction based on a refusal to take the test (to wit: voluntary admission of guilt without evidence thereof) than challenging the accuracy of the instruments used.
Good luck with that.
(BTW: the whole "release the source code" thing is more a rasing-the-stakes legal tactic than a legitimate questioning of the equipment involved. Are you REALLY ready to expend considerable resources to find vindicating flaws in a commercial product? You have to convince the prosecutor you will do it, and succeed, before he'll drop charges in favor of keeping that revenue path flowing.)
Re: (Score:3, Insightful)
Exactly.
If you know you are not intoxicated, and are worried that a false-positive will screw you, GET A BLOOD TEST. It's pretty ironclad, and I'll take a few hours of inconvenience over a wrongful conviction based on faulty evidence (or user error -- didn't I read that the breathalyzers are fudgeable?). A blood test is highly unlikely to report you as drunk if you've not been drinking.
If you ARE intoxicated, then you're a hazard and I hope (and trust) that either method will recognize you as the fool tha
Re: (Score:3, Insightful)
I've been in head on collision with a drunk driver at a combined speed of 110 MPH. The drunk driver simply swerved into my across my side of the road on a state highway in Idaho. Only one of us was wearing a seat belt (I'll let you guess which one).
It may be true in the rural areas of the US that the risk of an alchohol related accident is lower "at an hour when nobody is on the road", but in most urban areas this is never true.
Having sat in the county courthouse for a day waiting to testify at the trial
Re: (Score:3, Insightful)
The real secret is to keep a sealed bottle of liquor in your car. If your a dumb ass and drive drunk and you get pulled over, pull out the bottle and wait for the officer to come up to your window. When the officer can see you, open the bottle and take a few swigs.
At that point you'll have a good chance of getting away with an open container charge since they'll be unable to prove your BAC when you were actually driving.
Re: (Score:3, Insightful)
Is there any truth to this? I've heard it several times before.
I suspect there are a number of other minor infractions that could be piled on including the various "refusal to obey a lawful order" b.s. when the officer orders you to put down the bottle before you've had a chance to drink. Worse still, the officer could "mistake" it for a weapon with the ensuing hilarity of a ride to the hospital while they try to keep all your fluids inside you.
All in all, I think it's a pretty bad idea.
Re:Good luck with that! (Score:5, Informative)
If you're pulled over and suspected of DUI, then don't take the damn test, beacuse the accuracy of the breathalyzers are questionable. Plain and simple.
Worst. Advice. Ever. Let me qualify that, if you're a first offender, it's the worst advice ever. First off, depending on what state you're pulled over in, the consequences of refusing the test are worse than your first dui arrest. Second, prosecutors are now using the fact that you refused the test against you as proof that you were intoxicated. If you have no had prior DUI arrests, you should almost always take the test. You can always fight it later on, but you'll almost surely loose your license if you refuse.
Re: (Score:3, Insightful)
You can always fight it later on, but you'll almost surely loose your license if you refuse.
If you've been pulled over while drinking losing your license should be the last thing you worry about. A criminal record is going to haunt you a lot more than a suspended license. Why give them evidence that will be used to help secure a conviction that leads to that criminal record?
Re:Good luck with that! (Score:5, Insightful)
Seriously though, I'm sure there is a small probability of a breathalyzer malfunction but that applies to everything else in the world, and there is a way of dealing with that if it happens (as in this case, challenging the evidence and perhaps getting it dismissed in court, requesting a blood test etc) In any case if that is your concern, how do you explain refusing to take the blood test etc. Also, the whole thing about police trying to "bust as many as possible" doesn't make sense, unless you mean to actually catch as many drunk drivers as possible? Isn't that a good thing? Or do you mean the cops somehow rig breathalyzers to show alcohol levels that aren't there?
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Re:Good luck with that! (Score:5, Interesting)
minnesota is actually involved in a similar case with the same company: http://wcco.com/crime/breathalyzer.lawsuit.minnesota.2.669505.html [wcco.com]. the only difference is that in our case, the state dept of public safety claims that its part of the contract that the source code be made available to the state and cmi is still refusing to provide source.
Re:Good luck with that! (Score:4, Insightful)
But please, let's not get drunk drivers off the road. We need as many as possible out and about to cull the herd.
OK, screw the "insensitive clod" thing, you heartless trolling fuck. My sister, a PhD chemist, was killed on her way to work when some ass-hole, shit-faced drunk before 8 AM, crossed the median and demolished her car with his F150. My brother-in-law, at 29, became a single father of 2 in the early hours the next morning. The fuck driving the truck recovered just fine. "Culling the herd" my ass.
Breathalyzers may be crap, I know very little about them and no longer drink, but there is no excuse for allowing drunk drivers on the road.
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Frankly, if they found a fundamental flaw in this thing, wouldn't that mean that ALL cases in the past where it had been used would have to be reevaluated? Or retroactively dropped altogether?
Imagine that, would people whose drivers license had been revoked and who thus suffered a loss of income or anything of that sort suddenly be entitled to compensation?
Re:Blood testing (Score:4, Interesting)
in the UK, the hand-held testers are indicative only. If you fail the test, you're taken to the station for a breath test on a seriously big machine (think old minicomputer sized) or have a blood test, taken by a doctor, for use in a subsequent court case.
I'm sure there are all kinds of health-and-safety, human-rights, and civil-liberties reasons why blood samples cannot be taken at the roadside by a police officer.
Re:Blood testing (Score:4, Informative)
remembering back to Driver's Ed (1979) I think it was said that the human body metabolizes about 1 drink per hour. So if it takes an hour to get a blood sample, a suspect could fail a breath test but pass a blood test just by metabolism. Would a court factor in the time between inital arrest and blood sample collection?
Yes, alcohol is metabolized at a fairly regular rate. Since the time you were pulled over is known, and the time the test was administered is known, when you combine that with the relatively high accuracy/precision of the blood test you can determine what the BAC was at the time the person was driving.
Re:Great.. (Score:5, Insightful)
Still, it's a start. If Florida is now legally required to use machines that make the source available, then they will show up as there is now a market for them. Other state departments will quite possibly start to use these knowing full well that if the closed source ones were successfully challenged in Florida, then they could be in their jurisdiction too.
Plus it's just good publicity. It's finally a case where the public understood that "Wait, this magical doohickey has to have a way to figure out the data it provides . . . and if you can't tell us how then we can't rely on what it says.".
Re:Great.. (Score:5, Insightful)
Of course, I don't believe drinking and driving should really even be a crime to begin with. There's already laws against hitting someone while driving.
The point is to stop you from driving impaired, BEFORE you hit someone, so that you don't hit someone.
Sort of like why 'attempted murder' is illegal. So they can legally stop you before you succeed.
Re:Great.. (Score:5, Insightful)
Driving with a .08 BAC doesn't mean you're actively trying to cause harm.
That's your opinion.
In my opinion getting yourself reaction and judgment impaired and then hopping into the drivers seat is actively trying to cause harm.
Perhaps it shouldn't actually be a 'criminal offense'. But driving is a privilege not a right, and if you think its ok to get wasted and drive around you should have that privilege revoked.
Now you might argue that 0.08BAC is too low and that it doesn't affect you or whatever, fine, we can have a debate about what the actual number should be. Although I think 0.08 is in the right ballpark, and there are a number of studies which have shown that as you get drunk your ability to accurately gauge how drunk you are goes down. So the people arguing they are just fine at X BAC are far more often than not straight up wrong.
Don't need everybody... (Score:5, Insightful)
Don't even need all 49. Consider the California Emissions standard. Many companies produce ONLY Cali rated cars because it's cheaper than adjusting their assembly line and shipping procedures to make custom cars only for California.
Looking around on the internet, I only see something like 3 professional grade breathalyzers. At this moment, any company looking to do business in Florida has to disclose their source code*. If two companies don't, that leaves the remaining one with a monopoly in Florida - *ChaChing*.
They might do this in Florida, but what if you get three or four other states passing the same rules? The pressure mounts.
I'm all in favor of this measure. I'm strongly against DUI, but that's countered by my even stronger desire for accuracy and accountability in government, especially criminal matters. Of course, I'm also for NOT counting it as a DUI unless you're actually, driving. Sleeping in the backseat of a dead-cold car in the bar's parking lot with the keys in your jacket isn't DUI.
*Well, they don't strictly have to, but Florida departments would be idiots to buy machines from companies that won't, as they're inadmissable as evidence.
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Re:Drinky drinky (Score:4, Funny)
I'm looking forward to seeing the secret breathing pattern the developers hid in the code so they could pass it every time.