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Judge Rules Defense Can Get DUI Machine Source Code

kdawson posted more than 5 years ago | from the weird-or-inexplicable dept.

The Courts 270

pfleming alerts us to developments in Arizona on a subject we have frequently discussed (e.g. FL, MN, NJ): efforts in DUI cases to obtain source code to devices that analyze blood alcohol levels. On Friday a Pima County Superior Court judge ruled that the software that powers the Intoxilyzer 8000 must be revealed to defense lawyers. "Defense attorneys representing more than 20 people arrested on felony DUI charges agreed to consolidate their cases into one and to argue it before [Judge] Bernini ... The source codes are crucial because the Intoxilyzer 8000 sometimes gives 'weird' or inexplicable results ... Six other states have been battling CMI [maker of the Intoxilyzer] over the source code — Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey... CMI has currently racked up over $1.2 million in fines in a civil contempt order for not disclosing the source code in Florida."

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Why not prosecute? (5, Interesting)

rtfa-troll (1340807) | more than 5 years ago | (#24992461)

I'm sorry, but if a company is making it impossible for DUI prosecutions to be done fairly, the company officers should be sitting in jail whilst we wait to find out if they can get the source code together or not.

Re:Why not prosecute? (3, Insightful)

collinstocks (1295204) | more than 5 years ago | (#24992501)

They probably lost the source code and are too ashamed to tell anyone.

no (4, Funny)

commodoresloat (172735) | more than 5 years ago | (#24992993)

The problem is the source code looks something like this:

if ($suspect == black) {
        print ".12";
}
elsif ($suspect == hispanic) {
        print ".14";
}
elsif ($suspect == irish) {
        print "ERROR";
}

Re:no (5, Funny)

Anonymous Coward | more than 5 years ago | (#24993383)

I'm Irish, you insensitive clod!

Seriously, though, people make a big fuss if you make fun of just about any ethnic group other than the Irish. But you can say all you want about the Irish and get away with it. Racists!

Re:Why not prosecute? (5, Informative)

Courageous (228506) | more than 5 years ago | (#24992503)

It doesn't require a prosecution. If the judge gets irritated enough regarding their civil contempt, he can jail them summarily until they comply. I think, however, that judges are often reluctant to do this.

I should imagine that there is a long list of well established procedures for handling contempt. While I think it's well within a judge's power to jail almost indefinitely for contempt until the contempt is remedied, I suspect that there are rules of jurisprudence that govern them otherwise to some degree.

The contempt charges can continue indefinitely by the way. They will have to reveal their code eventually or go bankrupt, and this still won't get them out of contempt. IOW, it's only a matter of time before they reveal, and they are being immensely stupid.

There is this story (urban legend?) that Larry Flint of Hustler fame was fined $10K per day for contempt once. He sent the fine in pennies. In response, the Judge said he liked pennies and would gladly accept $50K a day paid in pennies.

One should not baldly thwart the judge. Makes you wonder who their lawyers are.

C//

Re:Why not prosecute? (0)

Anonymous Coward | more than 5 years ago | (#24992561)

I am pretty sure that is an urban myth. Public and private debts have a protected status with US currency. It is unlawful to reject any type of US currency as payment in these cases. This doesn't mean that pennies can be accepted for all services--it is only applicable for debts.

Re:Why not prosecute? (2, Informative)

LiENUS (207736) | more than 5 years ago | (#24992691)

I'm not sure a find for contempt of court plays by anywhere near the same rules as a debt. Judges have a lot of freedom with contempt of court charges. Did you know that there are actually certain conditions where they can jail you for contempt for refusing to provide them with incriminating information (note: I said information, not evidence or testimony.)

Re:Why not prosecute? (2)

poopdeville (841677) | more than 5 years ago | (#24993259)

Who said his pennies were rejected? The judge demanded more, for showing his contempt for the court unnecessarily and tying up the court's resources. They literally had to deal with a million pennies per day. Yes, the court made their problem worse, but Flynt was then in a position where he had to find 50 million pennies every day or go to jail.

Now, whether the myth is true or not is a question for Grant Imahara.

Re:Why not prosecute? (3, Informative)

jmauro (32523) | more than 5 years ago | (#24993285)

While private organizations can actually refuse to accept any current demoniation (pennies included, though it's usually $100 bills), government organizations (like the courts) cannot. If they refuse to accept the pennies which would be legal tender the debt to the government would be cancelled.

Re:Why not prosecute? (2)

Courageous (228506) | more than 5 years ago | (#24993467)

As another poster pointed out, the tender was not refused. It was, however, increased for showing deliberate disrespect to the court. Or so the story goes.

C//

Re:Why not prosecute? (4, Interesting)

Rich0 (548339) | more than 5 years ago | (#24992651)

Hmm - they don't seem to hesitate much when the issue is a news reporter refusing to testify about sources. It seems like this kind of discretion is reserved for corrupt C-level officers...

Re:Why not prosecute? (0)

HiThere (15173) | more than 5 years ago | (#24992615)

I don't know what criminal charges could be brought, but I think there are probably grounds for either slander or libel suits by the people the company has accused. (Caution: IANAL. If not, there OUGHT to be.) And possibly "interference with the performance of an officer in performance of his duties" could provide some grounds for the government to proceed, also.

But contempt of court might be a lot easier to get.

Re:Why not prosecute? (1)

mikesd81 (518581) | more than 5 years ago | (#24993363)

I don't know what criminal charges could be brought, but I think there are probably grounds for either slander or libel suits by the people the company has accused.

I don't think (I, too, am not a lawyer) that libel or slander would play because the company, per se, is not accusing them. The police are. Also,

"interference with the performance of an officer in performance of his duties"

I don't think they're technically interfering with the officer. If a patrol car doesn't start when they're about to pull out after a speeder, would you say Ford is interfering? (Or Dodge if they use Intrepids).

Re:Why not prosecute? (0, Troll)

samkass (174571) | more than 5 years ago | (#24992727)

This is an awful decision. The source code is in no way going to help determine whether the defendants were or weren't drunk. If there is a standard for accuracy of a DUI measuring device and this mechanism meets the standards, then the source code is irrelevant. If it doesn't, the source code is still irrelevant. Either way, having a zillion government stooges and ambulance chasers second-guessing some engineer's code is not justice.

Re:Why not prosecute? (1)

SUB7IME (604466) | more than 5 years ago | (#24992845)

Civil servants, to use more charitable language, could hire engineers to inspect this code, thus providing another job for an engineer while at the same time striving to protect civil liberties.

Re:Why not prosecute? (2, Insightful)

mikesd81 (518581) | more than 5 years ago | (#24993379)

No, see, you want someone NOT hired by any governmental body so it has a chance of being less bias and corrupt. The judge should appoint someone not involved any way in the case to inspect the code.

Re:Why not prosecute? (2, Insightful)

SUB7IME (604466) | more than 5 years ago | (#24993553)

No, see, you want someone NOT hired by any governmental body so it has a chance of being less bias and corrupt.

The judge should appoint someone not involved any way in the case to inspect the code.

If the judge appoints someone to inspect the code, then the government (via the judiciary) has hired someone (the engineer). Your request is paradoxical.

I disagree. (5, Insightful)

raehl (609729) | more than 5 years ago | (#24992961)

At some point, the suspects were caught, and the state needed to collect evidence of their BAC. Unfortunately, the state, instead of using a device that could provide accurate, verifiable evidence, used a device that, due to the lack of source code, could not provide verifiable evidence. Since the evidence is not verifiable, then the evidence is not admissible. Next time, the state should buy and use breathalyzers that produce admissible evidence.

While their action is despicable, the breathalyzer vendor didn't agree to provide their source code as part of the purchase, and shouldn't be forced to do so after the fact because the state didn't buy a device suitable for the task.

It's a bit like if I went to the state and offered to sell them a breathalyzer, and delivered a bicube blood alcohol measurement device, which is used by giving the two cubes to the suspect, having them throw the cubes on the ground, and then counting the number of dots that are showing on the top faces of the cubes. The state should know my breathalyzer isn't going to produce admissible evidence and shouldn't buy it and try and use the results in court.

Just like voting machines, states need to learn to stop spending millions of dollars on technology that doesn't work.

Re:Why not prosecute? (1)

Gnaget (1043408) | more than 5 years ago | (#24993061)

I'd rather just see the judge summarily dismiss all cases that use their breathalyzer. They wouldn't be able to sell another one until the released the code, and I guarantee they would release it immediately if it is between that and closing their doors

Intoxilyzer 8000 (1)

doyoulikegoatseeee (930088) | more than 5 years ago | (#24992491)

I'll take two please

cheers! (-1, Offtopic)

Albert Sandberg (315235) | more than 5 years ago | (#24992499)

for open source! ;-)

Re:cheers! (4, Insightful)

paitre (32242) | more than 5 years ago | (#24992519)

This isn't about OpenSource.

It's about making sure that the device providing so-called scientific evidence for use at trial is producing evidence properly and -accurately-.

I'm surprised it isn't already on the books that source code for devices such as this be disclosed for that purpose already.

Re:cheers! (3, Interesting)

HiThere (15173) | more than 5 years ago | (#24992637)

Then there needs to be a way to prove that the source code provided matches the binary code being executed. But if they can't provide the source code, then there's no reason at all to believe that it's honest.

Re:cheers! (2, Insightful)

ScrewMaster (602015) | more than 5 years ago | (#24993133)

If push comes to shove, the binaries could probably be extracted and disassembled. That would be expensive, I suppose, but given that this is a compact embedded system the code probably isn't that complex.

Is there a legitimate interest? (4, Insightful)

wfstanle (1188751) | more than 5 years ago | (#24992863)

The software should be available to those who have a legitimate interest. The source code for ANY machine being used to gather evidence should be available to the defense. The judge in such a case should get to decide if the defense needs to see the source code. If closed source software is leaked to the public, then some sort of sanction would be appropriate.

This raises the issue of software on election machines... The entire voting public has a legitimate interest about haw their votes are counted. The only way around this is that the software running should be publicly available. It doesn't have to be open source as far as copyrights are concerned, just the public should have the right to examine the source code.

Re:Is there a legitimate interest? (2, Interesting)

evanbd (210358) | more than 5 years ago | (#24992989)

Why restrict it to the defense? The police and the justice system ostensibly serve the public; there's no reason the public shouldn't be allowed to see the source code. The code could remain copyrighted; there's no need for it to be free for anyone to use, merely avaiable for anyone to inspect. I see no reason these companies need to keep the code secret as well -- it certainly doesn't serve the public interest.

Re:Is there a legitimate interest? (2, Insightful)

mikesd81 (518581) | more than 5 years ago | (#24993423)

From the article:

However, unlike the Intoxilyzer 5000, it isn't patented, so defense experts can't obtain the diagrams and source codes needed to figure out exactly how it works, Nesci said.

I think they're using this as the reason to keep the code secret.

Re:cheers! (5, Informative)

wdhowellsr (530924) | more than 5 years ago | (#24992879)

This has already happened with radar guns. If they are not calibrated frequently they will register a tree moving at twenty miles an hour.

That being said, in Florida, even if you are below the legal limit, you can still be charged with driving while impaired if it can be shown that your driving was impaired.

One of my closest friends is a Criminal Defense Attorney and he tells everyone he knows, "Don't drink a drop and drive". Also, you are within your legal rights in all fifty states to request a blood test instead of the breath test. You will be booked, but the results will be indisputable in court. So if you're sure you only drank one beer it will be dead on.

Re:cheers! (1)

Darkfire79 (1094983) | more than 5 years ago | (#24992975)

Um, and what about voting machines?

Re:cheers! (1)

nategoose (1004564) | more than 5 years ago | (#24993033)

It is very similar to the voting machine issue, and there have been several attempts to make open source voting systems. Open source systems of this nature make sense as well.

Re:cheers! (1)

Albert Sandberg (315235) | more than 5 years ago | (#24993099)

well I was making a joke. sorry if you didn't get it :-)

Re:cheers! (4, Informative)

dunezone (899268) | more than 5 years ago | (#24992597)

http://yro.slashdot.org/comments.pl?sid=288007&cid=20470751 [slashdot.org]

Even in such a simple case there are many things it should be testing. Is the A/D output sane? Does it take 3 quick samples while someone is blowing and average them or just take it once (which could be wrong for some reason)? According to the article, it doesn't look like it does. It calibrates the wind sensor, but doesn't check that the calibration is sane. It doesn't report errors unless they happen 32 times in a row. It disables the watchdog timer. It disables the interrupt for illegal instructions. It doesn't meet any coding standards. It contains code with things like "this is temporary for now" in it. There is an obvious reason why they didn't want the code released.

This was a partial summary of another breathalyzer source code that was opened up in another case. This has nothing to do with open source this has to do with software that is half-ass'd but determines if someone has to go through years of court hearings, meetings, suspended license, and a whole waste of money because some company rushed their software engineer to write code that may be giving wrong results all together.

This code should be open to public discrimination, there would be no trade secrets if the law protects the code from someone else using it after its been opened to public discrimination because every company would have to disclose their software.

Re:cheers! (2, Interesting)

cdrguru (88047) | more than 5 years ago | (#24993131)

Sorry, in today's world there are two sorts of companies: those with IP and a product and those with a product.

The first sort exist in the US and Europe. The second sort are in China, Singapore, Indonesia, etc. Taiwan and Japan are sort of a mix.

Once you let the IP out, the second sort of company can easily eliminate the first sort from the market. They can make the product cheaper, faster and more efficiently and they have zero R & D costs. Sure, you can use all sorts of things like patents and copyrights to try to lock down the IP. Unfortunately, none of those apply in a Singapore courtroom. And US Customs really, really doesn't care. They will not block importation of materials based on patents, licensing or anything else like that.

Idiotic (5, Insightful)

langelgjm (860756) | more than 5 years ago | (#24992505)

In court documents, Deputy Pima County Attorney Robin Schwartz said the defense attorneys' requests "bear all the hallmarks of a fishing expedition." Common sense shows that people rely on software and source-code information for everyday matters, Schwartz argued. One just looks at the results to know if something works or not. Schwartz used electricity as an example. "No one . . . needs to see a schematic of wiring to know that when he flips the switch on the wall, the light will come on," Schwartz said.

Um, that assumes that you are comparing the result with a known value. The point of a breathalyzer is to determine an unknown value.

Unless of course this attorney is saying that they already know the accused are drunk, in which case the breathalyzer is redundant.

Re:Idiotic (1)

JohnFluxx (413620) | more than 5 years ago | (#24992583)

Indeed, it's like seeing that the light is switching on and off and from that concluding that it is a person doing the switching. I'd want to see the electrical schematics to be sure that it is indeed wired to the light switch correctly.

Re:Idiotic (0)

Anonymous Coward | more than 5 years ago | (#24992599)

If only there was a way the developers of this device could do some testing, maybe with a random sample of drunk people and sober people. Then they could compare the machine results against the known value.

Oh yeah, they did that already.

Re:Idiotic (1)

Ihlosi (895663) | more than 5 years ago | (#24992661)

If only there was a way the developers of this device could do some testing, maybe with a random sample of drunk people and sober people. Then they could compare the machine results against the known value.

That has a good chance of missing the occasional "once a week" glitch in the firmware.

Re:Idiotic (3, Informative)

Media_Scumbag (217725) | more than 5 years ago | (#24992871)

Um, that assumes that you are comparing the result with a known value. The point of a breathalyzer is to determine an unknown value.

Unless of course this attorney is saying that they already know the accused are drunk, in which case the breathalyzer is redundant.

INAL, but I was convicted of a DWI.

The known value is an reference alcohol unit pre-applied prior to each test as a calibration, to establish that the machine is accurate. The unit is equivalent to a reading obtained in medical studies show to prove the average person intoxicated. This calibration is noted on your Breathalyzer card, along with your results (usually 2, spaced an hour apart, with different reference units), which will be noted on the complaint, and included in the arrest report.

Re:Idiotic (1)

RichardJenkins (1362463) | more than 5 years ago | (#24992875)

So if Mr. Schwartz could demonstrate that the machine consistently and accurately measures the blood alcohol content of a known sample, that be satisfactory without seeing the source? If on the other hand if this can't be proved, then the read out shouldn't be admissible, and seeing the source is irrelevant.

echo round(rand(1,40)/100."%"; (2, Funny)

Anonymous Coward | more than 5 years ago | (#24992509)

Weird numbers? What weird numbers...?

Re:echo round(rand(1,40)/100."%"; (5, Funny)

TD-Linux (1295697) | more than 5 years ago | (#24992751)

I find your lack of closing parenthesis disturbing.

Clearly you have had no experience in the Lisp.

Christian Weston Chandler Shows you Sonichu Dick (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#24992521)

High Functioning Autistic (and camwhore hornball) Christian Weston Chandler drew his Sonic-ripoff character on his dick for the world to see: http://lulz.net/furi/res/330616.html [lulz.net]

Eww. Much lulz to be had!

Re:Christian Weston Chandler Shows you Sonichu Dic (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#24992767)

Thank you for bringing this to my attention, Anonymous.

Sincerely,
Anonymous, Esquire

Sixth Ammedment (4, Informative)

mangu (126918) | more than 5 years ago | (#24992527)

the accused shall enjoy the right ... to be confronted with the witnesses against him; [cornell.edu]

In this case the withess is a machine, he has the constitutional right to know how that machine works

Re:Sixth Ammedment (5, Insightful)

DNS-and-BIND (461968) | more than 5 years ago | (#24992579)

No, the witness is the police officer who administered the sobriety test. The machine is just one of the pieces of evidence that the officer uses to make an arrest.

Re:Sixth Ammedment (3, Interesting)

Media_Scumbag (217725) | more than 5 years ago | (#24993027)

Convicted of a DWI.

What I found most intellectually troubling is that, in AZ (among toughest DUI laws in the country), the violations schedule awards the most "points" for potential crimes - actions that are crimes because of their potential to cause harm, property damage or death. The next "rung" down on the "ladder" includes crimes that result in harm, property damage or death.

I know I was wrong, and I no longer drink at all. Drunk driving is a serious problem, that should be addressed.

However, the way in which DUIs laws are written, there is little room for a judge's interpretation of circumstances. In AZ, you are LIKELY to be convicted if you have ANY amount of alcohol in your system and take a Breathalyzer test - under "impaired to the slightest degree."

What that conviction would get you typically sentenced to is: 90-day revocation of your driver's license, (30-days complete restriction, 60 allowed of work/school restricted), 30 days incarceration (29 suspended), $500-1500 in fines, 6-10 weeks of alcohol education, 1 year of driving with an ignition interlock (a breathalyzer to start your car), 20 hours of community service, and possibly, 2 years of probation. Your insurance goes up 30-50%.

This is mandatory minimum sentencing, and the judge has little power to affect the outcome except to change a few numbers on the jail term (more), fines, education and probation.

Also, 'probable cause" is not necessary to even make the original traffic stop. The term used now is "reasonable suspicion," and does not require you to commit any other violations: You might be driving just after the bars close at 2am. You might be in an area know for its' nightlife, and happen upon a roadblock - in short, your civil rights are intrinsically limited whenever you get in a car.

BTW- atorneys anecdotally say that the Intoxalyzers' readings often can be off by as much as 20%.

Re:Sixth Ammedment (5, Insightful)

Skapare (16644) | more than 5 years ago | (#24993065)

If the police officer relies on the reading from the device, then it is not really the police officer's judgment being presented, but just a re-iteration of what he read. Is the police officer able to testify about the accuracy of the device? Is the police officer able to testify about whether a device driver that reads values from an ADC register is doing so with the correct clock synchronization to ensure that does skew the time differential meaning of the results?

Re:Sixth Ammedment (1)

j79zlr (930600) | more than 5 years ago | (#24993381)

Generally they are asked to testify that the machine has been tested and certified within a certain time period. I won't get into the validity of that certification, but that would be all that the officer is required to testify to.

Re:Sixth Ammedment (0)

Anonymous Coward | more than 5 years ago | (#24992585)

mod this up

Re:Sixth Ammedment (1)

nomadic (141991) | more than 5 years ago | (#24992665)

In this case the withess is a machine, he has the constitutional right to know how that machine works

Legally, witnesses must be people; machines and animals don't count.

Re:Sixth Ammedment (3, Interesting)

RAMMS+EIN (578166) | more than 5 years ago | (#24992813)

If the witness in my case is a human, do I have a constitutional right to know how the human works?

Re:Sixth Ammedment (0)

Anonymous Coward | more than 5 years ago | (#24992923)

If the witness in my case is a human, do I have a constitutional right to know how the human works?

No, but you do have the right to ASK said human how he came to the conclusion of the fact you're being accused off.

Compare this to "How do you know I killed him", not "How was the optical signal from your eyes processed by your brain?"

Re:Sixth Ammedment (0)

Anonymous Coward | more than 5 years ago | (#24992937)

To a degree yes. You have the right to know if that human is a compulsive liar, has poor memory, is being paid by a conflicting interest, ect...

Re:Sixth Ammedment (4, Informative)

PacketShaper (917017) | more than 5 years ago | (#24993321)

Absolutely. Many lawyers have successfully defended their clients due to testimony from witnesses with a history of lying or being otherwise discredited.

Well, there's one solution to all this ... (4, Insightful)

ScrewMaster (602015) | more than 5 years ago | (#24992531)

rule that all programming used for government functions be open source, unless there's an overriding reason for it to be closed. This outfit appears to have manufactured and marketed a fundamentally flawed piece of technology that may very well have resulted in prison time for innocent people. Not acceptable ... a manufacturer's need to maintain a competitive edge should not be held more important than our right to not be falsely accused and wrongly imprisoned. Now, of course there may be other issues with CMI's product other than the firmware, but a detailed examination of the code is a good first step.

Furthermore, the people responsible for the decision to market the Intoxilyzer should be held accountable for the device's failures, especially if they sold it knowing that the design was defective. Sure, it costs more money to properly certify a design, and to implement effective quality controls. Still, if auto manufacturers have to suffer multi-million-dollar lawsuits over tiny flaws in vehicle design, these guys should hardly get off scot-free.

Re:Well, there's one solution to all this ... (1)

jmerlin (1010641) | more than 5 years ago | (#24992659)

In addition, extensive testing by non-affiliated parties should be required and published to prove the accuracy of the device (such as having persons take the test, and at the same time have blood drawn and tested to show accuracy).

Expensive, sure. But is it worth imprisoning innocent people because someone wanted to make a buck?

Re:Well, there's one solution to all this ... (1)

umghhh (965931) | more than 5 years ago | (#24993275)

you can follow the following procedure:
1. check breath with the apparatus
2a. if result is positive i.e. alco in blood confirm with blood test.
2b. if result is negative but officers administering the test think that this is incorrect one can order additional blood test.

In any case double check if test results are doubtful as it seems to be the case here.
There are civilized countries around where this is common practice - after positive test you are brought to a hospital where a blood test is done.

Re:Well, there's one solution to all this ... (1)

jimicus (737525) | more than 5 years ago | (#24992757)

rule that all programming used for government functions be open source, unless there's an overriding reason for it to be closed.

That would never fly, on the simple basis that every government department would have to replace every IT system they own - and some people with an awful lot of money are still very attached to the idea of closed source.

However, I can't think of any good reason why "open source" should not be applied to equipment used for justice purposes (eg. speed cameras, breathalysers) and mean "open to the government and, where applicable, to defence lawyers for use by expert witnesses" rather than "available to anyone on sourceforge".

Re:Well, there's one solution to all this ... (1)

ScrewMaster (602015) | more than 5 years ago | (#24993017)

Well, I think in most of the situations where governments use software, the public's needs are just as well served by open protocols and document formats. Open software would be nice, but you're right that it wouldn't be economically practical at this point. Perhaps had it been mandated thirty years ago ... but it wasn't.

However, in situations where an individuals life and liberty are at risk ... yes, you're absolutely right. Cameras, breathalyzers, ODB interfaces, surveillance systems of all kinds, there are tons of PC-based and embedded systems in use by law enforcement.

All in all, I'm not sure sure that such source code shouldn't be truly "open". I know what you're saying, and it's logical enough. However, being available to defense lawyers and such leaves too much room for a serious defect to simply be swept under the rug by an out-of-court settlement. Consequently, people involved in similar cases would not be able to benefit from discovery.

Besides, if the stuff is bought and paid for by tax dollars, and it is used for law enforcement purposes, the code should be open for inspection by all. It is, after all, our software. Cops won't like that, but that's too bad.

Re:Well, there's one solution to all this ... (1)

jimicus (737525) | more than 5 years ago | (#24993427)

All in all, I'm not sure sure that such source code shouldn't be truly "open". I know what you're saying, and it's logical enough. However, being available to defense lawyers and such leaves too much room for a serious defect to simply be swept under the rug by an out-of-court settlement. Consequently, people involved in similar cases would not be able to benefit from discovery.

IANAL, but my understanding regarding criminal cases (and bear in mind that I'm not American either, so I may be way off here) there's no such thing as an out-of-court settlement.

There's "dropping the charges because we've just discovered that our evidence is nonexistent", and there's "pleading guilty (to either the original charge or a lesser charge)", both of which substantially reduce the amount of time spent in court.

Re:Well, there's one solution to all this ... (1)

kegghead (1069556) | more than 5 years ago | (#24993397)

I don't think an open source requirement should be there, and I don't think the defense has any right to the source code for the device either. The lack/availability of software does nothing to ensure a device is functioning as intended. A device is more than just the soft/firmware. What if any of the thousands of integrated circuit elements is failing? What if power levels are just squeaking by and logic operations being to fail? What if the device has been physically damaged, and part of the device doesn't function properly? There are countless variables that can make a device fail, and software is just one.

This is why we have analytical science, which has existed since long before firmware, software, or computers in general. Analytical devices are calibrated, and are supposed to be tested/validated regularly. The presence/absence of software means nothing in the end: whether you know the code or not, the device must be calibrated and then validated against a specification. If the the defense is not satisfied with the police's book keeping with regards to standards/certification, or if they wish to challenge the standards/cert itself, then by all means argue in court.

Re:Well, there's one solution to all this ... (1)

Anonymous Brave Guy (457657) | more than 5 years ago | (#24993549)

I see where you're coming from, but I'm not sure I completely agree.

If the defence can produce to the court some evidence to suggest that the device may not be reliable, for example, indications that on some past occasions it has given false readings, or that the reading presented is within the device's margin of error of the relevant legal level of blood alcohol, then I do think that is a reasonable basis for further investigation. A court might consider that reasonable grounds for compelling the controlled release of the source code for expert analysis by the defence.

On the other hand, if the device has been used after a reasonable amount of testing, and the particular unit(s) in the case had been properly calibrated to whatever the accepted standard is, and the defence can only say "well, there might be a software bug!" without anything to back it up, then to me that is just a fishing expedition and allowing a case to be delayed is unrealistic. Sitting on a jury, if a police officer has observed driver behaviour suggesting they are drunk and a standard bit of kit with no history of failure backed up the officer's claim quantitatively, and the defence had nothing but pure conjecture about software as a counter-argument, I would have no difficulty in finding that "beyond reasonable doubt". It isn't beyond any doubt at all, but that is not the standard in a court case, and for good reason.

A few points.... (5, Interesting)

Anonymous Coward | more than 5 years ago | (#24992557)

I work as a law clerk in Minnesota, and while (being a clerk and all) I haven't "ordered" per se the source code be turned over, I've written many orders doing so -- until the Minnesota Supreme Court created a very high hurdle to getting it and no one has since requested. As stated by the attorney in the article, CMI won't turn the code over. Period. They simply will not obey court orders to do so. Minnesota is currently suing CMI in federal court, and we'll see how that turns out. But barring a federal court order, I assume they will simply continue to refuse to turn the code over. The result? Hundreds of DUIs being thrown out in Minnesota alone. Nice to see that the company cares more about their IP than the safety of our roads.

Re:A few points.... (0)

Anonymous Coward | more than 5 years ago | (#24992889)

... as opposed to the defense attorneys who will stop at nothing to get their clients off?

Re:A few points.... (2, Insightful)

commodoresloat (172735) | more than 5 years ago | (#24992931)

... as opposed to the defense attorneys who will do their jobs?

Fixed that for you.

Re:A few points.... (1)

larry bagina (561269) | more than 5 years ago | (#24993179)

An attorney/teacher of mine was defending a man charged in a hit and run incident. It was early in the morning, he was driving on a dark road. He thought he hit a deer, stopped, looked around, then drove home, not seeing the jogger (dressed in dark clothing) lying in the ditch. People asked, "how can you defend him?".

Then they asked him how to get out of a speeding ticket that they rightfully deserved but didn't want to pay.

Re:A few points.... (2, Insightful)

Skapare (16644) | more than 5 years ago | (#24992967)

If the device can't be proven to be accurate, then it's no different than an expert witness who testified against the defendant later refusing to disclose his credentials that would, in theory, show him to be an expert in the field. Courts do throw out such testimonies, and sometimes even declare mistrials (if the judge feels the fraudulent testimony cannot be ignored by the jury). And such "experts" don't get used, anymore (if not actually jailed for contempt).

Of course defense attorneys try to get their clients off. That's their job. Prosecutors also try to get the defendant convicted. That's their job. The defendant is either really innocent or really guilty and it's the judge's job to make sure the process is headed to finding the correct answer.

Re:A few points.... (3, Interesting)

Skapare (16644) | more than 5 years ago | (#24992893)

This should then result in police departments returning these defective devices for a refund, and further lawsuits as a result. I wonder if they care more about their IP than selling a product. What we need to do is get the word out to all police departments and prosecutors that they face serious hurdles keeping real offenders off the streets if they use this company's products. Let these company executives choose between being able to prove the accuracy of the device in court (if it is so) or going out of business from lack of sales in all 50 states.

Re:A few points.... (1)

symbolic (11752) | more than 5 years ago | (#24992987)

Like the states have done with all of the defective electronic voting machines the Diebold and others have unloaded on the American public? I think it's safer to consider it money flushed.

Re:A few points.... (1)

cdrguru (88047) | more than 5 years ago | (#24993053)

The problem is that unless the sensor is some kind of one-of-a-kind item unique to the company, what their entire product consists of is a sensor, a microprocessor and the code to interpret the readings from the sensor properly.

Once the source code gets out into the world - and of course it will be leaked somewhere on the Internet - they no longer have anything at all. No product. Why? Because their product can then be replicated for 1/10th the price in China. I'd say that protecting the source code is their only option.

It is entirely possible that they could have an expert review the source code in their office and ensure that no copy of it leaves their possession. They could have their own developers assist in this review. Unfortunately, it sounds like that course might disclose their proprietary source code consist of nothing more than reading a sensor and displaying the results. Good sensors often produce really nice results that require little interpretation. Of course, half the battle is figuring that out.

Again, once it gets out the company might as well just close down. They aren't going to be making any more sales after the Chinese manufacturing starts.

Re:A few points.... (0)

Anonymous Coward | more than 5 years ago | (#24993287)

so what? Considering the shoddy product that has resulted...I'm not sure I see a problem with this outcome. Just a result of the "free market," right? ;)

Cares more about their IP (1)

nurb432 (527695) | more than 5 years ago | (#24992959)

And this is a surprise to you? They are selling a product, not safety.

I would also imagine that if a major bug is found, they might have to refund all the purchases to date, and go under.

Re:A few points.... (1)

nategoose (1004564) | more than 5 years ago | (#24993013)

I would have thought that the court(s) would rule that the prosecution had to provide the court (and the defense) with the source code (and schematics, device testing procedures, ...) in order to use the results of the test as evidence. It seems to me that the provider of the Intoxilyzer 8000 should be answering to the prosecution and police. The police could then take up with the Intoxilyzer 8000 people their issues with the uselessness of the device if this info weren't provided. I'm stupid, though, so I could have it all wrong.

Re:A few points.... (2, Insightful)

PMuse (320639) | more than 5 years ago | (#24993083)

The result? Hundreds of DUIs being thrown out in Minnesota alone. Nice to see that the company cares more about their IP than the safety of our roads.

Law enforcement will soon come to grips with the fact that it cannot get a conviction with CMI. Law enforcement will then buy other equipment or use some other sobriety test.

At that point, CMI will be able to sell DUI products only in states that have already ruled that the source need not be turned over. Eventually, they will go out of business or cave.

timely as the Saturday headlines... (1)

swschrad (312009) | more than 5 years ago | (#24993239)

CMI and Minnesota have reached an agreement to make the source code availiable. there is not much else in the snoozepaper article, buried inside the local section today.

frankly, I would expect some enterprising attorney to require a "normal" sample showing correct calibration for his cases, and see whether the state goes to blood tests for prosecutions.

it is an option for either law enforcement or the suspect to take a blood alcohol test in MN. it's a hospital trip, and that's going to wreck the cop's night if he's still a ticket book behind the "oh, no, we don't require that" quota.

Implication for voting machines? (0)

Anonymous Coward | more than 5 years ago | (#24992645)

Just asking. While the context obviously differs, the importance of voting machine accuracy ranks much higher than that of breathalizers.

Prove it (1)

gbh1935 (987266) | more than 5 years ago | (#24992681)

If they are going to use the tools results as evidence, it should be open to expert examination just like any other evidence.

Source code is irrelevant (2, Interesting)

TD-Linux (1295697) | more than 5 years ago | (#24992709)

While there may prove to be some problem in the source code that destroys accuracy, it would be far more likely that any error is caused by the actual sensor. The only real error I can see them making in the source code would be averaging multiple readings from the sensor together.

The real way to determine if the Intoxilyzer is accurate is to do repeated lab tests using known concentrations of alcohol in air. This would take both software and hardware into account.

Re:Source code is irrelevant (1)

Skapare (16644) | more than 5 years ago | (#24993289)

An error that can happen in C code might be that register address is not given the "volatile" attribute, and is therefore not actually read in all cases where the code would seem to be doing so. A function intended to read the register might be doing a loop reading the register until some other condition becomes true. In most cases that condition is true immediately, but in rare cases that condition is delayed. So the function only read the register once and merely assumed it re-read it all the remaining times.

Other possible errors can involve handling calibration data. The sensor might need to be tested over a range of values to correlate electrical readings to meaningful physics. It would store these calibration points in memory and use them to convert a reading to data. But if the array used to do this has a "one-off bug", the readings can be corrupt sometimes.

The code could be using an invalid pointer someone. Once that happens, all bets are off for anything that depends on its values in memory not being changed by something else.

Lab tests do not necessarily give accurate results. The lab tests might not be subjecting the device to the bumpy ride you'd get if you were in the police car during a chase. The lab tests might not be subjecting the device to the unreliable electrical supply in the vehicle. The lab tests might not be subjecting the device to a wide variety of other gases that could be concurrently present with (or without) the alcohol being tested. Even if many of these variations are tested for in the lab, how about all the combinations together?

Re:Source code is irrelevant (2, Insightful)

danzona (779560) | more than 5 years ago | (#24993417)

While there may prove to be some problem in the source code that destroys accuracy, it would be far more likely that any error is caused by the actual sensor.

Your assumptions that the manufacturer of the tester wants a fair test is unverified.

I'm not saying that this is the case, but what if the manufacturer, who is selling to law enforcement, wants to build a tester that will err on the side of too many positives? For example, what if the auditing the source revealed that the tester takes 5 readings and reports the highest value?

I think that it is reasonable for someone accused of a crime by a machine to know how that machine works.

imho (1, Insightful)

Anonymous Coward | more than 5 years ago | (#24992721)

breathalyzers should never be the final answer.
you get pulled over for erratic behavior
you get breathalyzed and/or FST and if either merit suspicion you should then and only then be taken in for blood and/or urine done by a scrutinized lab.

the breathalyzer should be an indicator, not evidence.

Re:imho (1)

guruevi (827432) | more than 5 years ago | (#24993043)

And who would pay for all those tests? My tax dollars? And who is going to guarantee that my blood & urine sample won't be used for other purposes like central DNA databases in some 3-letter agency's basement.

The problem with DUI is not the problem, it's the punishment. In some countries in Europe, you get pulled over driving drunk, you get the option of having a blood test done on-site by a certified doctor, your sample remain anonymous and get discarded right after the test. Or you can opt to simply wait in a cell for 4 hour increments for a next test until you're clear. Once you're clear, you go back to driving with a small fine. Here in the US, you get caught with a simple breathalyzer test after drinking one or two glasses and you lose your license for at least a year, you get to pay heavy fines (and in NYS you get to pay those on a yearly basis) and then after a year some board considers whether or not to give your license back. I know somebody who hasn't gotten his license back in 12 years while others just drive around without a license (and subsequently registration and insurance)

An assembly language? How would anyone understand? (1)

Doug52392 (1094585) | more than 5 years ago | (#24992741)

If the system is one of those handheld machines police use, wouldn't the "source code" be a very low-level language, like an assembly language (not like C/C++ or Java)?

How the hell are the defense going to explain an assembly language - a VERY low-level language - to the Jury? A jury that most likely consists of people who use their computers to check their E-mail, watch videos, and surf the web. It took me a LONG time to make any sense of assembly languages... I just wonder how long it will take the Jury... or the people teaching the Jury what every line of an assembly language does... on a device that probably contains thousands of lines of code. It would be a bit easier with a higher level language like C++, because that at least provides words that people could comprehend.

Re:An assembly language? How would anyone understa (1)

TD-Linux (1295697) | more than 5 years ago | (#24992795)

If the system is one of those handheld machines police use, wouldn't the "source code" be a very low-level language, like an assembly language (not like C/C++ or Java)?

Not quite true. While it used to be that all embedded devices were programmed in assembly language, nowadays there are C compilers for most embedded microcontrollers. C is very frequently used when doing complex math and/or when time is not an issue.

A jury that most likely consists of people who use their computers to check their E-mail, watch videos, and surf the web.

Once a flaw has been found in the source, it could most likely be demonstrated with a real live Intoxilyzer.

Re:An assembly language? How would anyone understa (1)

MalleusEBHC (597600) | more than 5 years ago | (#24992817)

You don't have to explain assembly language to a jury; you get an expert witness to testify.

Re:An assembly language? How would anyone understa (1)

piojo (995934) | more than 5 years ago | (#24993019)

You don't have to explain assembly language to a jury; you get an expert witness to testify.

I'd be more concerned that if there were serious flaws (and there may be), you couldn't find an expert witness that's good enough to find them.

Courts deal with this kind of thing a lot (2, Insightful)

Skapare (16644) | more than 5 years ago | (#24992837)

They just have an expert witness examine the code. It would be someone with experience in the kind of assembly code involved, and experience developing firmware for measurement devices like this. It is the testimony of the expert, not the source code itself, that would be presented to the jury. Just because you can't grok assembly code doesn't mean no one can. Obviously someone had to write the stuff.

Sadly, it may be the case that this manufacturer hired someone like you to develop it, and it was their first time writing for that CPU architecture, and under the memory and speed constraints involved in the hardware selected for the device. Perhaps it gives flaky results simply because values are not read from registers in sufficient time for it to have the correct meaning. The hardware may be providing the next interval reading, but the software assumes it's from an earlier time interval, and differentiates the values incorrectly. There are lot of other possible problems that can happen when interfacing between software and hardware. Just look at all the bugs device drivers in common computer systems have.

Don't forget here that we are talking about a device that gets substantially less testing than a driver in Windows, and gets deployed for use in mobile environments that subject the device to hostile conditions like vibration and mishandling. And consider that there are fewer of these devices made and sold than there are beta test copies of a new version of Windows. Which will have the greater scale of testing in the intended environment?

Re:Courts deal with this kind of thing a lot (1)

ScrewMaster (602015) | more than 5 years ago | (#24993121)

Everything you say is true enough: as someone who spent more than a few years hacking assembler on a number of different processors I can agree. However, that's still no excuse.

When my Windows box blue-screens and I lose an hour's work I say a few choice words, press the reset button, and get on with life. When an evidence-collection device malfunctions and a person's life is trashed as a result ... it's a different matter entirely. If the manufacturer can't demonstrate to the court that his device works, and works reliably, then he should go into another business. I don't want my life dependent upon someone else's poor design and testing methodologies.

If it turns out that there's no way to produce such a device within the economic constraints you mention, then perhaps society would benefit from their being removed from service. It appears from the numerous cases being affected by this one vendor's product that there are some serious issues with these machines, and law enforcement's growing dependence upon them.

Keep this idiot away from any kind of electricity (4, Insightful)

Skapare (16644) | more than 5 years ago | (#24992765)

Schwartz used electricity as an example.

"No one . . . needs to see a schematic of wiring to know that when he flips the switch on the wall, the light will come on," Schwartz said.

And what would this guy do if he finds that sometimes the light doesn't come on? Or the light goes off on its own? Or comes on by itself? Or flickers and buzzes? An electrician would need to know the wiring involved. A diagram or schematic would be used, if available, or else he would have to trace the wires (reverse engineering).

And this analogy doesn't even apply to a measurement device. What if he uses a volt meter that says the voltage is 120 volts ... does he assume that because the meter deflected that it's reading is correct? It could be a 240 volt circuit that has each wire only 120 volts relative to ground.

Any device that cannot be independently verified as operating correctly at all times should not have any of its results submitted in court for any purpose other than to argue that the device is defective in a case against the manufacturer.

Re:Keep this idiot away from any kind of electrici (0)

Anonymous Coward | more than 5 years ago | (#24993055)

It could be a 240 volt circuit that has each wire only 120 volts relative to ground.

Er.

Re:Keep this idiot away from any kind of electrici (2, Interesting)

Skapare (16644) | more than 5 years ago | (#24993171)

That's how things are wired in the USA for 240 volt circuits. The transformer secondary is tapped at the midpoint and grounded at that tap. All 3 wires are supplied to the building. 120 volt circuits can be wired between the midpoint neutral and either of the other wires. 240 volt circuits can be wired between the 2 non-neutral wires. While AC is, of course, alternating polarity in time, at any one instant, one of those wires is positive while the other is negative relative to the neutral. So the voltage difference between them will be 240 volts.

If you insert the two probes into the outlet holes for power, and one of those probes is broken, you can still get a reading that shows the charge potential for just one side. Digital meters pull so little current from the measurement that they actually can read charge potential alone. It could then show as much as 120 volts even for a 240 volt circuit, giving a reading that could appear to make sense since 120 volt circuits are the most common here, while the actual circuit is really 240 volts. A good electrician will cross check his meter to be sure it is not giving a faulty reading.

Re:Keep this idiot away from any kind of electrici (1)

TimSSG (1068536) | more than 5 years ago | (#24993273)

An good Electrician should check all the wires. Three wire setup example of one type of three wires (120) High Neutral Ground Ground to Neutral should read very low; best reading is zero volts AC. High to Neutral should read about 115 VAC RMS High to Ground should read about 115 VAC RMS Three wire setup example of another type of three wires (240) High Low Ground Ground to Low should read about 115 VAC RMS High to Low should read about 230 VAC RMS High to Ground should read about 115 VAC RMS Tim S

Re:Keep this idiot away from any kind of electrici (0)

Anonymous Coward | more than 5 years ago | (#24993087)

Schwartz sounds like the kind of DA you would want if you were planning on framing someone, being as he isn't interested in how things work and will believe anything told him that confirms the prosecution's case.

Any device that cannot be independently verified as operating correctly at all times should not have any of its results submitted in court for any purpose other than to argue that the device is defective in a case against the manufacturer.

No doubt they were accepted under a statistical testing model and that being the case they really shouldn't survive under "beyond a shadow of a doubt" reasoning. These are felony cases that can destroy a person's life, that can even turn accidents into murder charges even when they would otherwise be determined as the other driver's fault. At best a breathalyser test should only be evidence for obtaining a search warrant to obtain a blood test. Probably the only thing stopping these tests from becoming a cash cow for dishonorable communities is that the charges derived from them automatically become a state case and not a local one.

From the company's product literature... (1)

Nezer (92629) | more than 5 years ago | (#24992943)

This comes straight from the product's PDF made available on the manufacturers website.

Under "Features and Options", "REAL-TIME CLOCK: accurate to ±10 minutes per year."

Now, although I'm pretty sure that time measurements aren't required for analysis, I have to wonder the accuracy rate is like for it's intended purpose.

That argument aside, unless the clocks are well-maintained this sort of time drift could really skew the evidence in a case where time was critical. A poorly maintained machine could, in theory, be the "reasonable doubt" that someone committed (or even didn't commit) a crime.

Re:From the company's product literature... (0)

Anonymous Coward | more than 5 years ago | (#24993137)

+/- TEN MINUTES a year?

Watches from the dollar store are accurate to within +/- 10 seconds a month.

How can this thing be that bad? Is the clock mechanical? Based off an R/C timebase?

If they can't get the clock working better than something I can buy from a dollar store, they need to redesign the entire thing!

Re:From the company's product literature... (1)

perlchild (582235) | more than 5 years ago | (#24993451)

The clock drift is not likely to be that high between two measurements. And if it is, well it won't be 10 minutes for a year. It'd be much better expressed in milliseconds per minute. I think the real-time clock in this case is likely used for printouts, such as the device might do to save the police officer having to write down, instead he just has to initial it as being correct to what's displayed on the device.

You Knew This Was Coming.... (0)

Anonymous Coward | more than 5 years ago | (#24993117)

These problems are a result of the breathalyzers running a Windows OS.

Now, if they ran Linux, it would be a completely different story.

The Only Possible Reason (1)

Nom du Keyboard (633989) | more than 5 years ago | (#24993211)

I'm sure that the only possible reason that they don't reveal the source code is that it's badly commented, and that's in the places where it's commented at all. Isn't modular or structured. Loop indexes are all "i" and "j". And it still contains a plethora of GOTO statements. The programmers don't want to reveal this to the world.

Oh, and it's written in Visual Basic 4.

Re:The Only Possible Reason (1)

timberwolf753 (1064802) | more than 5 years ago | (#24993547)

And now forsomething completly diffetent www.youtube.com/watch?v=u0WOIwlXE9g

In NYC The Police Screw You (5, Interesting)

Nom du Keyboard (633989) | more than 5 years ago | (#24993279)

In NYC the police using their breathalyzers (might be a different model) could trigger an intoxicated reading just by keying their radios nearby. The needle would jump higher and they could use that to lock you away for hours until a much slower blood test refused to confirm the reading. It is well known that they used this "ability" to harass and lock away people who annoyed them with no justification. There are all kinds of "tricks" that can be played with these machines and the defense is right to be very leery of any "evidence" provided by them.

And I know Pima county well enough to know not to rely on what their attorneys say as the final word on anything.
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