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Breathalyzer Source Code Ruling Upheld 520

Posted by timothy
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."
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Breathalyzer Source Code Ruling Upheld

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  • At last... (Score:5, Insightful)

    by Anonymous Coward on Thursday January 15, 2009 @03:25PM (#26471395)

    Finally
    Guess there are some judges out there that understand justice.

    • by Bloke down the pub (861787) on Thursday January 15, 2009 @03:45PM (#26471791)

      Guess there are some judges out there that drive while intoxicated.

      Fixed that for you.

    • Re:At last... (Score:5, Insightful)

      by darguskelen (1081705) on Thursday January 15, 2009 @03:48PM (#26471843)
      They only have to make the code "available to witnesses for the defense" and there is no stipulation that the code can't be sealed/have a non-disclosure around it. I haven't been to court, so I don't know if NDAs are enforceable on evidence, but I do know that judges can seal a case/evidence if need be.
    • Re:At last... (Score:5, Insightful)

      by Gerzel (240421) * <brollyferret&gmail,com> on Thursday January 15, 2009 @04:32PM (#26472777) Journal

      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)

      by Mysticalfruit (533341) on Thursday January 15, 2009 @05:13PM (#26473529) Journal
      I think it should be law that any system that's used by law enforcement should have its internals made available.

      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)

        by shmlco (594907)

        "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

  • by Ngarrang (1023425) on Thursday January 15, 2009 @03:25PM (#26471409) Journal

    Someone is going to figure out how to file a defense involving the release of Microsoft Windows, I just know it.

    • by guyminuslife (1349809) on Thursday January 15, 2009 @03:31PM (#26471529)

      "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."

      • by Ethanol-fueled (1125189) * on Thursday January 15, 2009 @03:40PM (#26471681) Homepage Journal
        If he has an unpatched box, all he has to do is turn on his compromised computer for it to be unknowingly used in such a manner by a remote controlled attacker seeking to traffic illegal material.

        That's enough to raise reasonable doubt.
        • by Anonymous Coward on Thursday January 15, 2009 @03:54PM (#26471973)

          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)

            by Warll (1211492)

            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)

    by Jawn98685 (687784) on Thursday January 15, 2009 @03:26PM (#26471425)
    The courts got it right, this time. Yeah, sure, the whole argument is a no-brainer for anyone who thinks about it for more than 30 seconds, but the jurists weighing similar cases re. voting machine source-code seem to be struggling with it nonetheless.
  • Huh (Score:5, Funny)

    by caution live frogs (1196367) on Thursday January 15, 2009 @03:27PM (#26471439)

    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.

  • by Smidge207 (1278042) on Thursday January 15, 2009 @03:28PM (#26471461) Journal

    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=

    • by IndustrialComplex (975015) on Thursday January 15, 2009 @03:42PM (#26471729)

      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.

      • Re: (Score:3, Insightful)

        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?

  • by DriedClexler (814907) on Thursday January 15, 2009 @03:28PM (#26471465)

    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: (Score:3, Insightful)

      by internerdj (1319281)
      Puting trade secrets at risk means more money up front. The companies don't mind so much if the price is right, but the taxpayer balks at the fact that the copy of XP pro they run at home for $300 suddenly costs their state government $15000 a seat.
  • Open Source (Score:3, Interesting)

    by mfh (56) on Thursday January 15, 2009 @03:29PM (#26471477) Journal

    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.

  • Hahahaha. (Score:3, Interesting)

    by darkmeridian (119044) <william.chuang@gm a i l . com> on Thursday January 15, 2009 @03:32PM (#26471553) Homepage

    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)

      by Hairy Heron (1296923) on Thursday January 15, 2009 @03:49PM (#26471865)
      Yeah it's utterly horrible that people would actually have to make sure that the evidence they are using against people is actually accurate and not being tainted by flaws in the equipment used or their methodologies. Oh the horrors of that!
    • Re:Hahahaha. (Score:5, Insightful)

      by blhack (921171) on Thursday January 15, 2009 @03:50PM (#26471873)

      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.

    • Re: (Score:3, Insightful)

      by TubeSteak (669689)

      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)

      by Kawolski (939414) on Thursday January 15, 2009 @04:05PM (#26472201)
      While I'm not happy to see a bunch of drunk drivers run free, it's a necessary evil. I hope this becomes precedent throughout the country, forcing manufacturers of devices used to send people to prison to be OPEN about how their devices work down to the source code. Besides, it's the defendant who's paying for the code review, not the taxpayers, and they should have the right to be allowed to review the code for a presence of a bug in the software may cause people to test over the limit regardless of their sobriety.

      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)

        by sacrilicious (316896) on Thursday January 15, 2009 @05:47PM (#26474251) Homepage

        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."

        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.

    • Re: (Score:3, Insightful)

      by blindd0t (855876)

      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)

    by girlintraining (1395911) on Thursday January 15, 2009 @03:33PM (#26471559)

    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: (Score:3, Interesting)

      by faloi (738831)
      If breathalyzers cease to be used, that will likely just increase the use of blood testing. In my town, they've already had a few "no refusal" weekends/holidays to get around pesky defense lawyers advising people to refuse the breathalyzer. A judge is on tap to get provide a warrant for the blood search, and it goes on from there.
    • Re:Fish. (Score:4, Insightful)

      by Jason Levine (196982) on Thursday January 15, 2009 @04:15PM (#26472391)

      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.

    • Re: (Score:3, Insightful)

      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.

  • by pla (258480) on Thursday January 15, 2009 @03:38PM (#26471651) Journal
    As much as I like hearing about cases of stickin' it to Da Man, I don't know that we should necessarily celebrate this decision quite so much...

    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: (Score:3, Insightful)

      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

    • by QuoteMstr (55051) <dan.colascione@gmail.com> on Thursday January 15, 2009 @04:33PM (#26472785)

      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.

    • Re: (Score:3, Insightful)

      by GTarrant (726871)
      All software has bugs. The existence of those bugs doesn't necessarily mean that a jury will find reasonable doubt. The defense can argue it, just like the defense will argue that a radar gun was wrong. But it doesn't always work. Lots of people are convicted on DNA evidence, and you can bet that the defense almost always brings up "But the machine could be wrong!" argument. But the technicians generally have to take the stand and defend what they're doing, and the algorithms can be challenged (famousl
  • Not exactly... (Score:5, Informative)

    by Tassach (137772) on Thursday January 15, 2009 @04:02PM (#26472117)

    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: (Score:3, Insightful)

      by Tassach (137772)
      And it looks like that's what happened... from TFA:

      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.

  • by yabos (719499) on Thursday January 15, 2009 @05:11PM (#26473463)
    I wonder how long until someone demands the source code for the cop's radar detector. There's gotta be at least a little bit of assembly code in those.

    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.
  • by lbgator (1208974) <<james.olou> <at> <gmail.com>> on Thursday January 15, 2009 @05:27PM (#26473861)

    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.

  • by EdwardJohansson (1453829) on Thursday January 15, 2009 @06:29PM (#26475069)
    There are many factors that could alter the reading on a breathalyser. Our bodies get rid of alcohol in many different ways and at varying rates. Some people will naturally blow higher ratings than others. In Australia, after a breathalyzer is used to detect potential drunk drivers, the driver is taken into a "booze bus" or the nearest police station where a blood sample is taken and tested to give the true result. The breathalyzer result should NEVER used in court.

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