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Closed Source -> Charges Dismissed? 700

Posted by Hemos from the your-mileage-may-vary dept.
Snorpus writes "According to the Tampa Tribune, judges in the central Florida county of Seminole are dismissing DUI charges when the defendant asks for information on how the breath test works. Apparently the manufacture of the device is unwilling to release the code to the state, and all four judges in the county have been dismissing DUI cases when the state cannot provide the requested information. Could this apply to other situations where technical means (radar guns, video surveillance, wire-tapping, etc.) are used to gather evidence? " I'd not plan on this as a legal defense, but the question it raises - of public access to information - is an important one.
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Closed Source -> Charges Dismissed? More

Closed Source -> Charges Dismissed?

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  • radar guns (Score:3, Interesting)

    by _Shorty-dammit ( 555739 ) on Monday June 06, 2005 @06:20AM (#12734301)
    this is the first thing that popped into my head as I was reading through the post, and then it was mentioned near the end, hehe. Wonder if this might be successful with them speeding tickets, hehe.

    • Re:radar guns (Score:4, Funny)

      by oniony ( 228405 ) on Monday June 06, 2005 @06:22AM (#12734316) Homepage
      The first thing that popped into my head was Remmington Fuzzaway, but it's hardly relevent.
    • When I was in the States a few years ago, I heard a guy on the radio say that many people succesfully got their speeding ticket torn up, by asking for radar gun maintenance logs, calibration reports, and for the cop's radar gun training certification. Apparently the cops often didn't have all the paperwork in order, in which case the judge dismissed the speeding charges.

  • Voting machines? (Score:5, Interesting)

    by Anonymous Brave Guy ( 457657 ) on Monday June 06, 2005 @06:20AM (#12734306)

    It seems to me that one place this could really matter would be if a precedent were set that affected all the electronic voting machines cropping up in recent elections (with not such a great reputation so far, IME).

    • This is the 2'nd post in this story. So it can not be redundant. But it is also on-topic.
    • This was a problem here; the government tried to set up voting machines, with the contract being that once final delivery was complete they'd be given the source. They were used in some constiuencies in one election, then abandoned due to public unhappiness with them and a failure by the company to present the source. They're still lying round in a warehouse somewhere, and it looks like they're staying there for the time being.

  • Pulic Right to how it works (Score:5, Interesting)

    by redstar427 ( 81679 ) on Monday June 06, 2005 @06:20AM (#12734311)
    Does the Pulic have the right to how these devices work, or just the procedures on how they are used?
    • The public has the right to know if the device works, and how well. Without knowing how it works how can a citizen know if the charges against them are valid?
    • It seems to me you don't have to know how it works, you just have to know that it works. In which case case studies (which the manufacturer would be happy to produce) and calibration logs (which the police should have) should suffice.

      Also a DUI is not like a speeding ticket where getting out of it earns you an atta boy. A DUI should not slip on a technicality.

      • Re:Pulic Right to how it works (Score:5, Insightful)

        by jedidiah ( 1196 ) on Monday June 06, 2005 @07:25AM (#12734664) Homepage
        You've got that BACKWARDS.

        A DUI prosecution should not succeed based on a "technicality". The consequences of such an action if successful are far more grave and thus are deserving of a much higher standard of car on the part of law enforcement.

        If attorneys can successfully bring up the issue of false negatives then THAT is the real problem & not some drunk meeting the burden for reasonable doubt because cops think they can be sloppy.

        Also, reasonable doubt is NOT a technicality.
        • If attorneys can successfully bring up the issue of false negatives then THAT is the real problem

          I doubt it is available online, but an actual case that backs up your statement took place in Beaufort County, SC in 1992. The county brings people in for a a breathalyzer. They don't do it in the field. So, one and only one machine is used. One night (and who knows how much longer than that) everyone blew a 0.21 - over the legal limit. After a while, the officers realized the ongoing pattern and tried it

      • Re:Pulic Right to how it works (Score:5, Insightful)

        by DarkSarin ( 651985 ) on Monday June 06, 2005 @07:33AM (#12734708) Homepage Journal
        I think you missed the point: how do you know they were really drunk if not for the technicalities? If you have the suspect blow in the breathalizer, and then believe they were drunk, you should then be required to get further proof if you want to inflict any permanent punishment (blood sample). This would mean taking the person down to the station--something an officer should always do if the person is drunk.

        That would change the nature of the tickets from a minor annoyance to a serious situation, for both the officer and the suspect.

        In many states (CA is the only one I know for certain) you have the right to demand the calibration records of any radar gun used in issuing a speeding ticket to you. If the gun has not been calibrated properly within 24 hours of issuing the ticket, then the charges must be dropped.

        The sad part of this is that you must ask. If you don't ask, you still have to pay the ticket.

        I think this is a good thing: it keeps the police honest. I think Freedom of Information is a good concept: the public watches the police. That's what the US is founded on--that government is to be held responsible for its actions by those who are governed. This means that government is not the highest power--the citizens are.

        I don't think that we are necessarily adhering to that concept, and I certainly feel like there is too much government secrecy. Sometimes the idea of "secret for the good of the state" frightens me more than anything else. State secrets are handled as a fact of life, but this isn't necessarily good. No, I don't want criminals and terrorists to have access to the information required to build a nuclear weapon, but neither do I think that most senate meetings contain that sort of information.

        I have more thoughts, but it is Monday morning, and I have work (!) to get done.
      • I'm sorry, you do have a right to know as the device becomes to some extent your accuser and you have a right to confront and question your accuser. Another replier makes the same point.

        The issue here is that the device might be fine under the standard calibration procedures which might be done in a temperature/humidity controlled environment, but the test you are given might be done in 120 heat on a very humid day and might and might have just been taken out of the policemans air conditioned car. It mig
    • That depends, did the company who makes them program them to ring the bell every four times and collect a percentage of the profits?

      Reminds me of the questions raised by people in several cities when red-light-running cameras were installed on a profit-sharing plan. The photographs provided no proof that the light was even red at the time, other than the fact that it was taken, and computers never do the wrong thing, right?

    • Re:Public Right to how it works (Score:5, Informative)

      by Ann Elk ( 668880 ) on Monday June 06, 2005 @07:29AM (#12734681)

      IMHO, the right to "know how these devices work" is just as important as the right to "face your accuser".

      Imagine this scenario:

      • You go out to dinner with friends, and you drink exactly one class of wine with your meal.
      • On the way home, you are pulled over by a police officer for driving 39 in a 35 zone.
      • You are "asked" to take a breathalyzer test.

      Background for non-US residents: In most places I have been in the US, the legal maximum blood alcohol content is around 0.08%. Most people (those with normal metabolism, etc) can easily drink one glass of wine and remain far below this limit.

      When you take this test, don't you really want to know how the machine works? A false positive could have a huge impact on the rest of your life.

      • You are "asked" to take a breathalyzer test.
        I understand why you put that in quotes but I wonder if everyone will. Some states, mine included, have "Implied Consent" laws. If you refuse to take a breathalyzer test you're charged with DUI. Yep, that's it, no proof, no questioning it, if you refuse you simply ARE guilty.

        The only reason I know this is because I had to attend a traffic safety class a few months back. The law went into affect last year yet we never heard a peep about it from the newsm

    • Not the public (Score:3, Interesting)

      by Martin Spamer ( 244245 )

      Does the Pulic have the right to how these devices work, or just the procedures on how they are used?

      This is not the public it is the court.

      In order for the prosecutor to demonstrate something to the court beyond a reasonable doubt, one of the key areas of scrutiny is that the chain of evidence is established from the act to the court.

  • Sounds like a huge open-source business opportunit (Score:5, Insightful)

    by isotpist ( 857411 ) on Monday June 06, 2005 @06:23AM (#12734326)
    This should be obvious, if you want your evidence used in court you have got to supply ALL OF THE METHODS. If I were a cop or DA I'd be screaming at the salesmen who sold me these machines that will not hold up in court. Some competitor, who has machines that can stand up to scrutiny, ought to be making a killing on this.

    Linus should go to a MADD meeting:-)

    • Re:Sounds like a huge open-source business opportu (Score:5, Interesting)

      by mwvdlee ( 775178 ) on Monday June 06, 2005 @07:22AM (#12734643) Homepage
      I went to a technical school where we were all required to do an electronics graduation project.
      One group wanted to make an alcohol tester, they asked around with the police but couldn't get any information so they wound up having to invent the thing themselves (sounds a lot harder than it actually was, basic components are available).

      In the end they had built in a few weeks time a machine which was much cheaper and notably more accurate than the device the police uses.

      Now "cheaper" can be easily explained by the quality of the casing, being hygenic and such but "accurate"... this had me seriously doubt the quality of the devices the police use.

      p.s. They apparently had a great time testing the machine!

  • Red light cameras (Score:5, Interesting)

    by swb ( 14022 ) on Monday June 06, 2005 @06:25AM (#12734333)
    I think where this is more interesting are things like "managed" red light cameras. In Minneapolis, we're getting them soon, and the system is actually run by a third party. They review photos and send the incriminating ones to the police, who then review the photos and decide whether to issue a moving violation.

    What I want to know is, who owns the pictures? Sure, the cops own the ones that they get from the company, but what about the others? Are they private property or is everything produced by the cameras public property?

    Let's say I'm accused of some crime and my defense is I wasn't there, I was driving around. And I drove through a bunch of red light cameras (without necessarily running a red light). Can I get access to the photos?

    • Re:Red light cameras (Score:4, Informative)

      by tdemark ( 512406 ) on Monday June 06, 2005 @06:51AM (#12734471) Homepage
      It sounds like you are under the impression that a red-light camera just takes a single shot of the car.

      When tripped, a camera actually takes two pictures; somewhat wide-angle shots that show the position of the car, the state of the intersection, and the state of the traffic signal.

      The first shot will show your car behind the stop line (not in the intersection) and a red signal. The second will show your car in the intersection with the light still red. The photos are timestamped.

      This way, they can prove in court that the car in the photo actually ran the red light at the time specified (the subject of the article above notwithstanding).

      - Tony
    • Presumably, if you had a court date set, you could file to get copies of all the evidence the city plans on using against you as part of discovery (though this may differ by jurisdiction). If they then present evidence that wasn't given to you as part of the discovery process, you can move for dismissal.

      {{Disclaimer:IANAL}}

    • Re:Red light cameras (Score:4, Informative)

      by enbody ( 472304 ) on Monday June 06, 2005 @09:01AM (#12735490) Homepage
      The key issue with red-light cameras is who controls the length of the yellow light being on. If you shorten the yellow light, you can increase violations and hence increase revenue. In many cases, the contract has the private camera company controling the yellow light timing. Revenue rather than safety becomes the deciding factor, and it is outside public control. I have read, but cannot verify, that cameras plus very short yellow lights increases rear-end crashes as people slam on brakes to avoid tickets. If red-light cameras are coming in your community, consider advocating that your community control the yellow-light timing. If the community controls the yellow-light timing, community pressure has a chance to influence the safety vs. revenue debate.

  • Weak (Score:2)

    by Jherico ( 39763 )
    This seems like a really weak defense and I'd be interested to know what the justifications the judges are using to make such a ruling. It seems analagous to DNA testing. Should a rape suspect be able to get off because he questioned how the DNA scanner works, and the court can't provide an answer?

    This is not a wedge issue that should be used to push open source. This should be filed under 'ignorance of the law, and by extension ignorance of the tools used in law enforcement, is no excuse'.

    And unles

    • Re:Weak (Score:2, Insightful)

      by teh moges ( 875080 )
      But the difference, often the DNA scanner can be shown how it works. Then expert witnesses can argue that the method is correct. The article says that you cannot get the information on how breath scanners work, and therefore, it cannot be proven in court that the scanners actually work.

    • Re:Weak (Score:5, Insightful)

      by Lifewish ( 724999 ) on Monday June 06, 2005 @06:36AM (#12734385) Homepage Journal
      Should a rape suspect be able to get off because he questioned how the DNA scanner works, and the court can't provide an answer?

      If the scanning system is dodgy then YES HE BLOODY WELL SHOULD! How would you feel if falsely convicted for rape due to dodgy evidence?

      Equally, given that traffic-related charges are a major source of income for police depts (certainly in Britain), how do we know the police didn't go for the breathalyser model that always flags each 20th suspect as being drunk? Sorry Granny, they caught you fair and square.

      Without access to the system internals (in this case the source code) we just don't know. However unlikely tampering may seem, that uncertainty will still be there.

    • Re:Weak (Score:5, Insightful)

      by Anonymous Brave Guy ( 457657 ) on Monday June 06, 2005 @06:38AM (#12734399)
      This seems like a really weak defense and I'd be interested to know what the justifications the judges are using to make such a ruling.

      Technical evidence is being submitted without information about how it was gathered, leaving no way for a court to assess its reliability? I'd say that should be a pretty strong defence, actually, probably enough to instruct a jury to disregard that evidence entirely.

      This is not a wedge issue that should be used to push open source.

      Indeed, the title is deeply misleading. A court requiring evidence about how software works is not the same as requiring the software to be Open Source, nor anything close to it.

    • Re:Weak (Score:5, Insightful)

      by p3d0 ( 42270 ) on Monday June 06, 2005 @07:26AM (#12734668)
      This should be filed under 'ignorance of the law, and by extension ignorance of the tools used in law enforcement, is no excuse'.
      Absolutely wrong. The corollary to "ignorance of the law is no excuse" is that citizens have the responsibility to educate themselves about the law. For the state to make that impossible, and then require citizens to do it anyway, is truly Orwellian.

      • ignorance of the law (Score:4, Insightful)

        by Ender Ryan ( 79406 ) on Monday June 06, 2005 @09:11AM (#12735604) Journal
        I really, really can't see how anyone can claim that ignorance of the law is never an excuse these days, when the law is so fucking complicated, so huge, so inconsistent, that simply knowing about the whole body of law a citizen is governed by is probably impossible for a human being. The law is so complex, broken, and obtuse, that lawyers literally come up with hundreds of interpretations. How, then, does an ordinary citizen _know_ the law.

        I find that very Orwellian.

  • Reading the article, apparently only Seminole County is applying the statute in such a manner, other counties in Florida say the state cannot supply something which they do not have, but it's not fatal to the Breathalyzer result being admittable as evidence.

  • It is an interesting question. How DO the public know, eg in court, if evidence gathered by using widgets, really is accurate, if not getting access to the knowledge of how the widget works? The radar gun might have construction flaws etc. There have also been several cases of red light cameras taking photos on green etc (because of erratic setup). Or the cases where a speeding camera claimed a garbage van driving at 120 km/h. Specificated top speed was 90 or something like that...

    There should be a possib

  • Opportunity Knocks (Score:3, Funny)

    by VernonNemitz ( 581327 ) on Monday June 06, 2005 @06:33AM (#12734371) Journal
    1. Create Open Source breathalyzers, radar guns, etc. 2. Advertise to all defendants everywhere the closed-source loophole in the prosecutions' cases. 3. Sell your versions of that equipment. 4. PROFIT!

  • Okay... (Score:4, Insightful)

    by Vo0k ( 760020 ) on Monday June 06, 2005 @06:36AM (#12734383) Journal
    So what stops the company from including a test for some other, not-so-common health-neutral or mostly neutral substance, and make the tests return "no alcohol" if the substance is detected, no matter how much alcohol is there?
    Say, you're a friend of the manager of the company. You're driving drunk, but you know "the secret". A cop pulls you over. You pull out your lighter and take a few deep breaths of the gas from the lighter. Not a thing commonly done, but and mostly harmless. The device detects you're a friend of the boss and displays alcohol level in the allowed range, despite the real readout.

    Any company is allowed to keep their trade secrets. It's just that government, just like any other customer may have specific requirements about the product. Like, access to the source code. You don't provide it? Sorry, we'll look for someone else to do business with. Same as intelligence won't like devices that provide "service backdoors", like military will pick EMP-resistant options over ones that can be easily fried by the enemy, wherever legal cases are involved, transparency of the design is essential.

  • "Original Story" (Score:4, Informative)

    by the_pooh_experience ( 596177 ) on Monday June 06, 2005 @06:36AM (#12734390)

    This tribune story only reports on the Orlando Sentinel [orlandosentinel.com] story found here which has some more details. The text of it is as follows (emph. mine):

    -----

    SANFORD -- In the past five months, Seminole County judges have thrown out hundreds of breath-alcohol tests that show drivers were legally drunk.

    The reason: The state won't disclose how the test machines work -- not because it doesn't want to, but because it doesn't have the information, and the manufacturer won't give it up.

    Seminole judges have tossed out more than 500 breath tests. As a consequence, prosecutors say, drunken drivers are getting off.

    One is Pieter Johannes Wesselius, 32, of Altamonte Springs. He was acquitted May 17 by a Seminole County jury that did not know his breath-alcohol measured 0.20, or 21/2 times the legal limit.

    Wesselius was driving a black Harley-Davidson on State Road 436 in Altamonte Springs on Sept. 18 when he was pulled over, according to a police report. He told officers he'd had six beers.

    Two years earlier, he had pleaded no contest to drunken driving in Seminole, according to court records.

    Wesselius, who is in jail after pleading no contest to driving a motorcycle without a license, could not be reached for comment.

    What's going on in Seminole is unusual. Nowhere else are judges throwing out virtually every breath test that comes before them.

    That's because all four Seminole County criminal judges now use the same standard: If a DUI defendant asks for a key piece of information about how the machine works -- its software source code -- and the state can't provide it, the breath test is rejected.

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

    Seminole judges are all following the lead of Seminole County Judge Donald Marblestone, who in January ruled, though the information may be a trade secret and controlled by a private contractor, defendants are entitled to it.

    "Florida cannot contract away the statutory rights of its citizens," the judge wrote. Marblestone would not discuss his decision, citing pending cases.

    Judges in other counties have said the opposite. The state can't turn over something it does not possess, and the manufacturer shouldn't have to turn over trade secrets, they've said.

    Three weeks ago, all eight of Brevard's county judges signed an opinion saying defendants were not entitled to the machine's source code. Three weeks before that, judges in Volusia and Bay counties also sided with the state.

    The demand for the machine's source code has popped up in Orange County but with less-dramatic results. Some judges have ordered the state to turn it over, but others have not, said Michael Saunders, the county court bureau chief for State Attorney Lawson Lamar.

    In Orange, defense attorneys also are demanding access to another Intoxilyzer trade secret: the machine's memory system.

    The machine at the center of all this is the Intoxilyzer 5000, the only breath-alcohol machine used by Florida law-enforcement agencies.

    When a drunken-driving suspect is hauled into a police station or jail, he must blow into it or lose his drivers license.

    The machine determines how much alcohol is in his blood by measuring the amount of alcohol he exhales. It does that by shining an infrared light through a puff of his air.

    The $5,000 machine is made by CMI Inc. of Owensboro, Ky. Company officials would not comment.

    The Intoxilyzer 5000 is perfectly reliable if properly maintained and operated, said Laura Barfield, manager of alcohol testing for the Florida Department of Law Enforcement, the agency that oversees all breath-alcohol testing in Florida.

    But FDLE's word is not good enough for defense attorneys.

    • That's because all four Seminole County criminal judges now use the same standard: If a DUI defendant asks for a key piece of information about how the machine works -- its software source code -- and the state can't provide it, the breath test is rejected.

      It's tough to say whether that's entirely fair; on the one hand, source code can be checked, but on the other, how do you know that's what was actually running on the machine at the time anyway? What really matters is that the algorithm/process is r

      • Re:"Original Story" (Score:3, Informative)

        by julesh ( 229690 )
        What really matters is that the algorithm/process is reliable, rather than the actual source code. If that algorithm/process has been properly reviewed and approved, whinging about lack of source code sounds more likely to let people off on a technicality than something actually in the interests of justice

        Unless the source code has been reviewed by an independent person who is qualified to make such a review, how do you know that it correctly implements the process? What if there's a bug that causes ever

  • Not wnating to set a precedent. (Score:4, Informative)

    by tres3 ( 594716 ) on Monday June 06, 2005 @06:39AM (#12734407) Homepage
    It is my opinion that the legal system doesn't want to set a precedent by admitting that Breathalyzers don't actaully measure ethyl alcohol. They measure chemicals that contain methyl groups and ethanol is one of them. There are many others. See: 1 [maine.edu] 2 [duiblog.com] 3 [california...riving.com] 4 [dui.com] 5 [potsdam.edu]

    • Re:Not wnating to set a precedent. (Score:2, Interesting)

      by Anonymous Coward
      My parents have a home breathalyser and I was using it so I could drive home one Christmas, then I had a flavoured chocolate and my reading jumped for 15 mins till the flavours left my mouth...

  • Not so hard (Score:2, Insightful)

    by the bluebrain ( 443451 )
    This problem can't be so hard. "The state" has to either:
    - produce or commission its own breathalysers and / or blood alcohol testers, or
    - get hold of and keep on standby expert witnesses who can answer the questions in sufficient detail to convince a judge and / or jury.

    The fact that neither can be fulfilled at the moment, and that it was (well, predictably) a defendent who had to point the weakness in the current state of affairs is neither here nor there: If "we the people" want to put someone in t
  • I would say the public is entitled to at least have access to the user's, maintenance and other available technical manual(s).

    As most of us know, electronic devices have +/- tolerances that could very much affect the outcome of a police measurement.

    For example, I remember reading in a tech manual that radar speedmeter readings can vary by as much as +/- 5%.

    It's not much, but it could make the difference between no fine, or a smaller and a bigger fine.
  • Would the government, especially this one which is even loathe to open their fly to take a piss, be likely to just create an open test? Then, regardless of what performs and how it's designed, as long as it demonstrates it means the Government Authorization Test, it's good in Uncle Sam's eyes. Even more diabolical would be the idea that by opening the code to such devices, there are DRM issues associated. Could they be sneaky enough to link the DMCA into this decision, issuing a counter-claim against the
  • Use of police taser. [palmbeachpost.com]

    That goes directly to the video; you will want to prepare to adjust speaker volume and your blood pressure as you watch.

    Linked from Hullabaloo. [blogspot.com]

    We don't like disrespecting authority in this country. Nor do we like open documentation of how police methods work:

    For years, Taser maintained that its stun guns never caused a death or serious injury. As proof, Taser officials said no medical examiner had ever cited the weapon in an autopsy report.

    But Taser did not have those auto

    • What exactly has that got to do with closed-source measuring devices in legal situations??

      The only thing going through my mind watching that video was "She's a total fake." I've done a fair amount of first aid training, and one of the first things we're taught is "The more noisy the casuality, the less there is wrong with them."

      If she'd been in enough pain to justify that much complaining, she'd have been incapacitated. She wasn't in agony, she was just throwing a tantrum.

      No sympathy here.

    • Bullshit.

      Let's see, she's talking on her mobile phone and speeding, with a suspended licence, which is both stupid and illegal.

      The cop then asks her politely to get out of the car. She ignores him and carries on talking on her phone, which is stupid.

      He asks her repeatedly to hang up and get out of the car, and she refuses. She could even get out of the car while still talking on the phone, which would at least show willing, but she doesn't. This is stupid, and (IIRC) tantamount to resisting arrest.

      Th

  • Comment removed (Score:5, Interesting)

    by account_deleted ( 4530225 ) on Monday June 06, 2005 @07:00AM (#12734520)
    Comment removed based on user account deletion
  • NEVER accept any measurement that doesn't include error bars.

    if a measurement without error bars isn't good enough for a 1st year student's meaningless experiment, why should it be good enough for you and your money and/or criminal record?

  • The point... (Score:3, Insightful)

    by Poromenos1 ( 830658 ) on Monday June 06, 2005 @07:18AM (#12734616) Homepage
    of this article is not that drunken drivers' charges were dropped, but if people should be prosecuted because a black box (whose function you don't know) said you're guilty. I could build something with a green and a red LED, and have only the red LED light up, meaning that you were guilty of whatever crime someone wanted, would that mean that you broke a law?

  • A Similar Topic (Score:3, Insightful)

    by stinerman ( 812158 ) on Monday June 06, 2005 @07:41AM (#12734761)
    Something else that should be looked at closely is the blatant trampling of the 5th Amendment in DUI cases.

    In many states your license is revoked for 1 year if you refuse to blow into the breathalyzer. Assuming you were under the influence, you'd be incriminating yourself if you do use the breathalyzer.

    Many people will reply that having a license is a privlege and can be revoked at the state's whim. I then ask those same people if other privleges such as voting (which is not an inherent right in the USA, but ought to be) should be taken away on the spot if you fail to give the authorities your DNA when they ask for it.

    • Re:A Similar Topic (Score:3, Insightful)

      by Shaper_pmp ( 825142 )
      As I understand it (warning: non-USAian), the 5th Ammendment only applies to testifying, and then only to speech - you'd have a hard time claiming exhaling was speech, unless you're prepared to claim "Hhhhhuuuuuhhhhhhh" is meaningful communication. And they'd probably want an unvoiced exhalation when testing you for DUI anyway.

      I also don't think the 5th Ammendment applies to incriminating yourself in any way, only about testifying - I doubt you could take the fifth to avoid giving fingerprints when arrest

  • Interesting problem.. (Score:4, Interesting)

    by bmajik ( 96670 ) <matt@mattevans.org> on Monday June 06, 2005 @08:28AM (#12735153) Homepage Journal
    if there's one thing i despise more than drunk drivers, it's cops and judges just saying you're guilty because they can, with no technical accountability.

    I recently defended myself in a moving violation case. I sat through the 6 prior cases where people admitted they were guilty but were basically just sad about getting a ticket (the usual crying-on-the-stand trick). One case even had its fine reduced! The girl skidded off the road and ran over a street sign!

    Then my case came. When i cross examined the officer i caught him in several logical fallacies and he could not say exactly how i was guilty of violating the statute, as written.

    But, none of that really matters. The judge decides what he wants to, and thats that.

    I was pulled over, by the way, because last winter, when i pulled away from a stop light, my tires started spinning on my all-wheel-drive-with-snow-tires 130hp winter car. Instead of doing something dramatic like slamming on the brakes or abruptly lifting off, i just rode out the wheelspin, keeping the car in my lane and straight ahead, etc.

    Cops dont "like" wheelspin, so i got a ticket. Specifically, my ticket was for "driving too fast for conditions". The other people that were convicted of this offense ran off the road, skidded through intersections, etc. One almost t-boned an officer.

    I was particuarly amused with myself when i asked if i was violating the law the second the light turned green, given that my instantanous speed was zero but my tires were spinning. When i was stopped, was i driving too fast for conditions ? :)

    Nevermind that last weekend i was teaching _other_ people how to drive safely at a racetrack. Nope, i'm a public driving menace, apparently. So says one agitated officer, and one judge.

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