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Breathalyzer Source Code Ruling Upheld
Posted by
timothy
on Thu Jan 15, 2009 02:22 PM
from the show-your-work-please dept.
from the show-your-work-please dept.
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."
Related Stories
[+]
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: Italian Red Lights Rigged With Short Yellow Light 353 comments
suraj.sun writes with an excerpt from Ars Technica which brings to mind the importance of auditable code for hardware used in law enforcement: "It's no secret that red light cameras are often used to generate more ticket revenue for the cities that implement them, but a scam has been uncovered in Italy that has led to one arrest and 108 investigations over traffic systems being rigged to stop sooner for the sole purpose of ticketing more motorists."
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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.
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Re:At last... (Score:5, Insightful)
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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.
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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.
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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."
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Re:So if Florida uses Microsoft Windows? (Score:5, Insightful)
That's enough to raise reasonable doubt.
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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?
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It's a good day. (Score:5, Insightful)
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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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).
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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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.
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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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.
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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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.
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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).
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.
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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?
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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.
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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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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.
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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.
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Re:Good luck with that! (Score:5, Insightful)
That is sage advice for those of us who live in states with implied consent laws.
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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.
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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.
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Re:Good luck with that! (Score:5, Informative)
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Re:Good luck with that! (Score:4, Insightful)
Always refuse.
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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.)
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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.
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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.
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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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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.
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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.
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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.
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Re:Hahahaha. (Score:5, Insightful)
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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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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."
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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.".
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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.
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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.
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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.
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