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Breathalyzer Source Code Ruling Upheld

timothy posted more than 5 years ago | from the show-your-work-please dept.

The Courts 520

dfn_deux writes "In a follow up to a 2005 story where Florida judge Doug Henderson ruled that breathalyzer evidence in more than 100 drunk driving cases would be inadmissible as evidence at trial, the Second District Court of Appeal and Circuit Court has ruled on Tuesday to uphold the 2005 ruling requiring the manufacturer of the Intoxilyzer 5000, Kentucky-based CMI Inc, to release source code for their breathalyzer equipment to be examined by witnesses for the defense of those standing trial with breathalyzer test result being used as evidence against them. '"The defendant's right to a fair trial outweighed the manufacturer's claim of a trade secret," Henderson said Tuesday. In response to the ruling defense attorney, Mark Lipinski, who represents seven defendants challenging the source codes, said the state likely will be forced to reduce charges — or drop the cases entirely.' ... What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret. It means the state has to give full disclosure concerning important and critical aspects of the case."

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At last... (5, Insightful)

Anonymous Coward | more than 5 years ago | (#26471395)

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

Re:At last... (5, Funny)

Bloke down the pub (861787) | more than 5 years ago | (#26471791)

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

Fixed that for you.

5 minutes of computer time (-1, Troll)

Anonymous Coward | more than 5 years ago | (#26472149)

Dear Slashdot

My name is Mike and I am serving the first week of a 10 year sentence in Federal Prison for severe SEC violations. I am very scared and I didn't know what else to do. I guess I have 5 good minutes to type this cry out for help until Tyrone and the crew come for me and give me what they call "Mandatory Showertime". I mean I have been exposed to more male cock in the first 3 days here than I have ever cared to know in my first 30 years of life. I guess it was some sort of sick joke that they gave me a big black cell mate named Tyrese who also part of Tyrones crew. As such he has first dibs on me or as he says "first dick in me". The nigger has beaten me senseless the first day here as he seems to get a real kick out of it and has repeatedly raped me and that's not even the worst of it. I never knew a man could cum 7 times in a row and with that I hadn't been able to get any sleep in the past day or so. The first time I met Tyrone was at our first shower time. Tyrese had "persuaded" me to go into the shower room and that's when I met the whole crew. There must have been 19 prison niggers in there and when the guards pulled out, thats when I was given a gangraping that I wouldn't wish on my worst enemy. Could you imagine 19 giant black cocks repeatedly ass raping and mouth fucking you? I think not, and don't think these guys went in one at a time. I swear it must have been 3 in my ass and 2 in my mouth at one point. I was in tears hearing Tyrone laughing at me saying "This be your life now cracka, you our bitch now". I still have the sharpie mark on my ass that says "Tyrone's ho". Uh oh it looks like it's mandatory shower time again. I think I am going to hang myself when Tyrese is out raping another white prisoner. Thanks for listening.

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

darguskelen (1081705) | more than 5 years ago | (#26471843)

They only have to make the code "available to witnesses for the defense" and there is no stipulation that the code can't be sealed/have a non-disclosure around it. I haven't been to court, so I don't know if NDAs are enforceable on evidence, but I do know that judges can seal a case/evidence if need be.

Re:At last... (1)

LandDolphin (1202876) | more than 5 years ago | (#26472289)

That seems perfectly fair to me.

Re:At last... (2)

Reikk (534266) | more than 5 years ago | (#26471921)

Hooray, another drunk driver back on the streets!

Re:At last... (4, Insightful)

mhall119 (1035984) | more than 5 years ago | (#26472273)

I believe the point of this ruling is that, without the source code, they can't legally prove that these people are in fact drunk drivers. So you'd be just as accurate to say: "Hooray, another innocent driver back on the streets!"

Of course, this is Florida, where people drive like they're drunk even when they're not.

Good luck with that! (-1)

Anonymous Coward | more than 5 years ago | (#26471401)

So now you can't sell technology to the state of Florida without challenging every competitor to reverse engineer it (and obscure the reverse engineering) and sell their own version everywhere else. Great!

Re:Good luck with that! (5, Insightful)

morgan_greywolf (835522) | more than 5 years ago | (#26471487)

No. Did you bother reading the summary? The judge ruled the defendant in a criminal case has the right to review the source code of the machine that was used to convict him.. It's not like they ruled that CMI had to open source the thing. That seems pretty reasonable to me.

Re:Good luck with that! (1, Insightful)

Anonymous Coward | more than 5 years ago | (#26471719)

I did read the summary. I'm also not so naive and arrogant that I really believe the source will stay private once criminal defendants can access it. For one thing, they (at least some of them) are *criminals*.

I'll go down to Florida tonight, get smashed, walk up to the first cop I see and demand the test. Three short months later me and my chemistry degree have a competing product on the market.

Re:Good luck with that! (1)

Anonymous Coward | more than 5 years ago | (#26471797)

There's a difference between allowing a criminal to access it and allowing an independent analyst access it. I doubt most criminals would understand the code anyway.

Re:Good luck with that! (-1)

Anonymous Coward | more than 5 years ago | (#26471959)

I just made the point that this creates an incentive for people who *can* understand to go down to Florida and get arrested/breathalized, solely for the sake of acquiring the source code. I made this point two minutes ago. It was in it's own *paragraph*.

Re:Good luck with that! (2, Insightful)

Hairy Heron (1296923) | more than 5 years ago | (#26472095)

Yeah because I'm sure there will be no NDA agreements or some legal ruling in place to stop you from using this as an excuse to steal people's source code. Are you really that stupid?

Re:Good luck with that! (1)

mhall119 (1035984) | more than 5 years ago | (#26472313)

So not only do you do jail time for your company's benefit, but your company gets sued into oblivion too for IP violations. Yeah, good plan.

Re:Good luck with that! (0)

Anonymous Coward | more than 5 years ago | (#26471761)

1) Be legally forced to release source code in DUI trial
2) Have competitors "borrow" trade secrets and improve on them
3) ???
4) Profit!

Although I guess if those secrets were really borrowed, they'd be sitting in the other seat in the courtroom, ready to go RIAA on someone.

Re:Good luck with that! (3, Insightful)

arcmay (253138) | more than 5 years ago | (#26472307)

What about providing proof that it was the version of the source code that was made available for review that was running on the machine at the time the test was administered?

Re:Good luck with that! (2, Insightful)

Ethanol-fueled (1125189) | more than 5 years ago | (#26471571)

Near the end of TFA:

To date, CMI is facing more than $2 million in fines because of their refusal to release the source codes, Lipinski noted.

Looks like it's not over yet. Everybody knows breathalyzers are shit anyway.

If you're pulled over and suspected of DUI, then don't take the damn test, beacuse the accuracy of the breathalyzers are questionable. Plain and simple. Keep your mouth shut and let 'em take you to the station, but don't take the blood or the piss test(they can't legally make you) later because your results may be worse and the the only thing that matters is your BAC at the time you were driving, not later at the station, so that can be fought. Also keep in mind that some cops make overtime and/or seek promotion and actively seek to bust as many as possible to achieve their goal.

Re:Good luck with that! (4, Insightful)

IndustrialComplex (975015) | more than 5 years ago | (#26471655)

That is sage advice for those of us who live in states with implied consent laws.

Re:Good luck with that! (4, Informative)

nog_lorp (896553) | more than 5 years ago | (#26471675)

Maybe this depends what state you are in... In California, you sign a contract to get your drivers license that says they can breathalyze or blood test you for BAC on reasonable suspicion of drunk driving and you waive the right to refuse.

Re:Good luck with that! (2)

Ethanol-fueled (1125189) | more than 5 years ago | (#26471725)

I don't remember signing anything(who reads the eula anyway? ^_^ ) but I learned that information from a Californian defense lawyer published in a Californian publication.

Re:Good luck with that! (5, Informative)

Sir_Kurt (92864) | more than 5 years ago | (#26471691)

Be aware that in some states (I think NC is one) failure to take the breathalyzer test will loose you your drivers licence. The penalties are the same as for drunk driving. Consult a lawyer in your state or country before taking slashdot advice. Kurt

Presumptive admission of guilt (4, Interesting)

dazedNconfuzed (154242) | more than 5 years ago | (#26471745)

If you're pulled over and suspected of DUI, then don't take the damn test

In many states, refusal to take a breathalyzer test is legally presumed an admission of guilt. You'll have a much harder time reversing a conviction based on a refusal to take the test (to wit: voluntary admission of guilt without evidence thereof) than challenging the accuracy of the instruments used.

Good luck with that.

(BTW: the whole "release the source code" thing is more a rasing-the-stakes legal tactic than a legitimate questioning of the equipment involved. Are you REALLY ready to expend considerable resources to find vindicating flaws in a commercial product? You have to convince the prosecutor you will do it, and succeed, before he'll drop charges in favor of keeping that revenue path flowing.)

Re:Presumptive admission of guilt (0)

Anonymous Coward | more than 5 years ago | (#26472085)

However, don't you have a right to consult to a lawyer before volunteering anything? And how long does your lawyer get to respond to you? If it takes 12 hours for the lawyer to show up, then the alcohol will be out of your system.

Or you could "pass out". That way, you aren't giving permission for the test, but you aren't refusing it either.

Re:Presumptive admission of guilt (1)

xbytor (215790) | more than 5 years ago | (#26472091)

> In many states, refusal to take a breathalyzer test is legally presumed an admission of guilt.

Refuse the breathalyzer and tell them you want a blood test instead. That removes a major piece of questionable technology from the process and gives your attorney other better known avenues to question the evidence or evidence gathering process. Also, it's not always easy for them to get a tech to do the work at 3am.

Re:Presumptive admission of guilt (2, Insightful)

gknoy (899301) | more than 5 years ago | (#26472219)

Exactly.

If you know you are not intoxicated, and are worried that a false-positive will screw you, GET A BLOOD TEST. It's pretty ironclad, and I'll take a few hours of inconvenience over a wrongful conviction based on faulty evidence (or user error -- didn't I read that the breathalyzers are fudgeable?). A blood test is highly unlikely to report you as drunk if you've not been drinking.

If you ARE intoxicated, then you're a hazard and I hope (and trust) that either method will recognize you as the fool that you are. Drunk drivers deserve the convictions.

Re:Presumptive admission of guilt (1)

Nukenbar (215420) | more than 5 years ago | (#26472123)

Yes, but the alternative of refusing is to blow. If you blow over .08, the prosecutor has iron-clad evidence of your intoxication. The only reason to ever blow is if you KNOW you will blow under. (i.e. you had less than 3 drinks)

Re:Good luck with that! (0)

Anonymous Coward | more than 5 years ago | (#26471749)

Not exactly. The fine print on my DL says "Operation of a motor vehicle constitutes consent to any sobriety test required by law." You can insist on a bloodtest (and should -- breathalyzers are garbage. Unless you're going to try to sneak out on a source code exemption). You're correct that a test done an hour after the fact isn't going to be the same as it was at the time you were driving, but most states now have laws that presume it was the same.

Re:Good luck with that! (2, Insightful)

EvilRyry (1025309) | more than 5 years ago | (#26471963)

The real secret is to keep a sealed bottle of liquor in your car. If your a dumb ass and drive drunk and you get pulled over, pull out the bottle and wait for the officer to come up to your window. When the officer can see you, open the bottle and take a few swigs.

At that point you'll have a good chance of getting away with an open container charge since they'll be unable to prove your BAC when you were actually driving.

Re:Good luck with that! (5, Informative)

tha_mink (518151) | more than 5 years ago | (#26471997)

If you're pulled over and suspected of DUI, then don't take the damn test, beacuse the accuracy of the breathalyzers are questionable. Plain and simple.

Worst. Advice. Ever. Let me qualify that, if you're a first offender, it's the worst advice ever. First off, depending on what state you're pulled over in, the consequences of refusing the test are worse than your first dui arrest. Second, prosecutors are now using the fact that you refused the test against you as proof that you were intoxicated. If you have no had prior DUI arrests, you should almost always take the test. You can always fight it later on, but you'll almost surely loose your license if you refuse.

Re:Good luck with that! (1, Flamebait)

smooth wombat (796938) | more than 5 years ago | (#26472005)

but don't take the blood or the piss test(they can't legally make you)

In most states, if you refuse an on-the-spot breathalyzer test, that is an admission of guilt which automatically triggers penalties. Every state has its own laws regarding what happens if someone refuses with most states now revoking your license, fining you and giving you points on your license (which increases your insurance rates).

Here's a breakdown of PA's DUI laws [state.pa.us] .

But please, let's not get drunk drivers off the road. We need as many as possible out and about to cull the herd.

Re:Good luck with that! (4, Insightful)

clarkkent09 (1104833) | more than 5 years ago | (#26472043)

In this situation either you are actually drunk while driving, in which case you are a complete jerk and deserve to be locked up, or you are not drunk, in which case you'd save yourself a lot of unnecessary hassle if you just take the test. So your advice is only useful to the guilty trying to evade justice. Therefore, you are a TERRORIST!

Seriously though, I'm sure there is a small probability of a breathalyzer malfunction but that applies to everything else in the world, and there is a way of dealing with that if it happens (as in this case, challenging the evidence and perhaps getting it dismissed in court, requesting a blood test etc) In any case if that is your concern, how do you explain refusing to take the blood test etc. Also, the whole thing about police trying to "bust as many as possible" doesn't make sense, unless you mean to actually catch as many drunk drivers as possible? Isn't that a good thing? Or do you mean the cops somehow rig breathalyzers to show alcohol levels that aren't there?

Re:Good luck with that! (2, Informative)

pipboy9999 (1088005) | more than 5 years ago | (#26472045)

This doe snot work in Minnesota [state.mn.us] by the way:

169A.52 Sub 3: Test refusal; license revocation. (a) Upon certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in physical control of a motor vehicle in violation of section 169A.20 (driving while impaired), and that the person refused to submit to a test, the commissioner shall revoke the person's license or permit to drive, or nonresident operating privilege, for a period of one year even if a test was obtained pursuant to this section after the person refused to submit to testing.

Re:Good luck with that! (2, Informative)

Muad'Dave (255648) | more than 5 years ago | (#26472143)

As stated less forcefully in other replies, if you refuse a breathalyzer test in Virginia, you _will_ lose your driving privilege. I think you can require them to take a blood test, but that's _in addition_ to the breathalyzer, not instead of it.

So if Florida uses Microsoft Windows? (3, Funny)

Ngarrang (1023425) | more than 5 years ago | (#26471409)

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

Re:So if Florida uses Microsoft Windows? (5, Funny)

guyminuslife (1349809) | more than 5 years ago | (#26471529)

"I did NOT willfully download child pornography. My Windows operating system hijacked my computer, downloaded the material, and brought it up in Internet Explorer every day between 6 and 10 PM on weekdays, and between 7 AM and 10 PM on weekends, holidays, and days I had sick leave."

Re:So if Florida uses Microsoft Windows? (4, Insightful)

Ethanol-fueled (1125189) | more than 5 years ago | (#26471681)

If he has an unpatched box, all he has to do is turn on his compromised computer for it to be unknowingly used in such a manner by a remote controlled attacker seeking to traffic illegal material.

That's enough to raise reasonable doubt.

Re:So if Florida uses Microsoft Windows? (5, Informative)

Anonymous Coward | more than 5 years ago | (#26471973)

while this is unquestionably true as a question of fact let me assure you that at least one court of law is more than capable of ignoring it - this exact thing (unpatched windoze box got p0wned) happened to my sister-in-law's brother back in '02 and he's currently on federal holiday in Mississippi (at least it's the "country club"/minimum-security kind) and facing a lifetime of being registered and presumed to be something he clearly isn't...

even if you don't care about the injustice of ruining the life of a (then) 19-yr-old you don't & likely never will know (I'd only met him 2x before that happened) you might want to consider the six-figure sum of you tax dollars that's been shoveled into the furnace prosecuting and imprisoning him but, hey, we got to "think of the children!!!", right?

It's a good day. (5, Insightful)

Jawn98685 (687784) | more than 5 years ago | (#26471425)

The courts got it right, this time. Yeah, sure, the whole argument is a no-brainer for anyone who thinks about it for more than 30 seconds, but the jurists weighing similar cases re. voting machine source-code seem to be struggling with it nonetheless.

Great.. (1)

Shadow7789 (1000101) | more than 5 years ago | (#26471427)

Now if only 49 other states would follow suit.

Re:Great.. (4, Insightful)

MBGMorden (803437) | more than 5 years ago | (#26471885)

Still, it's a start. If Florida is now legally required to use machines that make the source available, then they will show up as there is now a market for them. Other state departments will quite possibly start to use these knowing full well that if the closed source ones were successfully challenged in Florida, then they could be in their jurisdiction too.

Plus it's just good publicity. It's finally a case where the public understood that "Wait, this magical doohickey has to have a way to figure out the data it provides . . . and if you can't tell us how then we can't rely on what it says.".

Don't need everybody... (4, Insightful)

Firethorn (177587) | more than 5 years ago | (#26471901)

Don't even need all 49. Consider the California Emissions standard. Many companies produce ONLY Cali rated cars because it's cheaper than adjusting their assembly line and shipping procedures to make custom cars only for California.

Looking around on the internet, I only see something like 3 professional grade breathalyzers. At this moment, any company looking to do business in Florida has to disclose their source code*. If two companies don't, that leaves the remaining one with a monopoly in Florida - *ChaChing*.

They might do this in Florida, but what if you get three or four other states passing the same rules? The pressure mounts.

I'm all in favor of this measure. I'm strongly against DUI, but that's countered by my even stronger desire for accuracy and accountability in government, especially criminal matters. Of course, I'm also for NOT counting it as a DUI unless you're actually, driving. Sleeping in the backseat of a dead-cold car in the bar's parking lot with the keys in your jacket isn't DUI.

*Well, they don't strictly have to, but Florida departments would be idiots to buy machines from companies that won't, as they're inadmissable as evidence.

Re:Don't need everybody... (1)

0100010001010011 (652467) | more than 5 years ago | (#26472251)

And some companies just said screw you Cali and people weren't able to buy cars they wanted until 15,000 miles on the clock (or what ever the actual number was).

What does this mean for... (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#26471433)

So all guesses to the likelyhood of this holding up aside...

What will this mean for companies like Diebold? Can we expect them to pull out of Florida altogether while this decision is in effect?

Huh (5, Funny)

caution live frogs (1196367) | more than 5 years ago | (#26471439)

There's a joke here about the importance of open-source breathalyzers vs. voting machines but I'm too full of outrage fatigue to make an effort at it.

Re:Huh (1, Funny)

powerlord (28156) | more than 5 years ago | (#26472103)

There's a joke here about the importance of open-source breathalyzers vs. voting machines but I'm too full of outrage fatigue to make an effort at it.

When you say "Open-Source" here, do you mean "Free" as in "Speech" or as in "Beer"?

Corporations must show responsibility as well: (5, Insightful)

Smidge207 (1278042) | more than 5 years ago | (#26471461)

As pesky as the Bill of Rights can be to swift justice and severe vengeance, I do remember something about the the accused having a right to face their accuser. If the Intoxilyzer uses buggy firmware that results in inaccurate readings, then the accused has every right to question it. The company that makes the Intoxilyzer must be held responsible for its actions as well. Someday, somewhere, some company will step up and say, "Yes, we knew our product was faulty. But we have shareholders who will sell our stock in a heartbeat if we miss our mark in any quarter."

Holding both the accuser and the accused responsible for their actions is what helps create a society based on the rule of law. Otherwise, we'd be a police state. As a practicing trial attorney I *much* prefer the former.

=Smidge=

Re:Corporations must show responsibility as well: (4, Insightful)

IndustrialComplex (975015) | more than 5 years ago | (#26471729)

pesky as the Bill of Rights can be to swift justice and severe vengeance, I do remember something about the the accused having a right to face their accuser. If the Intoxilyzer uses buggy firmware that results in inaccurate readings, then the accused has every right to question it.

Don't even argue that it might be buggy.

"If I touch this technisphere to the forehead of the accused and ask a question, it will tell us if he is lying"
*performs action and asks question*
"Outlook hazy, ask again"

In all seriousness, what would prevent a black box from doing any sort of action if it were treated in any manner outside of it's original qualification tests? Without the code, you can't know that. It could give a 0.1 BAC boost if you hold it at a 10% angle while administering the test.

Re:Corporations must show responsibility as well: (1)

SuiteSisterMary (123932) | more than 5 years ago | (#26472283)

I remember playing Police Quest 2. Mainly because it wasn't all that long ago; found the Police Quest Collection at Future Shop. Space Quest Collection too, for that matter.

Anywho, at one point you're on highway patrol, and need to clock a speeder by pacing him. When you go to court, you need to bring the calibration records for your speedometer with you.

How is this any different? Why don't the police need to prove, *prove* that the breathalyzer is reasonably maintained, accurate, and calibrated?

Equipment = voting machines? (4, Insightful)

DriedClexler (814907) | more than 5 years ago | (#26471465)

I know the "related stories" says this too, but just to get the ball rolling:

What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret. It means the state has to give full disclosure concerning important and critical aspects of the case."

So, will this mean voting machine source code will have to be disclosed?

Personally, I'm most surprised that:

a) Governments don't require source code disclosure, at least for purposes of review, when they ask for bids or shop for equipment/software,
b) It's so hard for them to find someone willing to meet a).

Re:Equipment = voting machines? (2, Insightful)

internerdj (1319281) | more than 5 years ago | (#26471513)

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

Re:Equipment = voting machines? (3, Insightful)

Abreu (173023) | more than 5 years ago | (#26472003)

Well, it might be a good incentive to companies trying to sell Solaris, Linux or other open source solutions...

Re:Equipment = voting machines? (1)

mog007 (677810) | more than 5 years ago | (#26472121)

Florida has done away with electronic voting as of last year's primaries. At around... September we had a new system in place that functions like a test scantron. You bubble your answers onto a sheet of paper and that's it. They decided to put the new machines to the test for the local elections, mosquito control and school board, that sort of thing.

Also, there's a verifying machine that scans your ballot before you turn it in, so if there's a problem on your ballot, it'll spit it back out and you can correct the error. Cost them a hell of a lot less than those damn voting machines, and it works a lot better.

Drinky drinky (1)

schmidt349 (690948) | more than 5 years ago | (#26471469)

I am *so* looking forward to grepping all the comments out of the source that talk about how they implemented the breathalyzer software at a drinking party.

Re:Drinky drinky (2, Insightful)

Tassach (137772) | more than 5 years ago | (#26472225)

Disclosing the source code to a defense expert is not the same as disclosing it to the general public. The source code itself doesn't necessarily have to be entered into evidence. It would be sufficient for the defense if their experts are allowed to examine it under a limited NDA. The report of their findings could then be admitted without disclosing the actual code.

Open Source (3, Interesting)

mfh (56) | more than 5 years ago | (#26471477)

The thing I like about open source is that everyone can make the software better. Why a company wouldn't want to produce source code, is beyond me. I think they fear that they will be viewed as incompetent when several mistakes are found in their code, or that sneaky randomizer function call rears its ugly head.

In all seriousness, companies would do well to realize that open source increases revenues by enabling a larger FREE workforce to do your work for you. Put aside your griefs with secrecy, unless of course your code doesn't work, or you stole large chunks of the code, and fear the legal ramifications.

I'd hate to be in their position, either way.

Re:Open Source (4, Insightful)

internerdj (1319281) | more than 5 years ago | (#26471643)

For this company, a major mistake in the previously secret code means that any conviction from the device's results is now under suspicion. They will have lost the trust of their ONLY customer market. Not to mention the fact that they will be named as defendants in any resulting lawsuit.

Re:Open Source (3, Funny)

gbjbaanb (229885) | more than 5 years ago | (#26471657)

personally, I'm looking forward to being a tester on this project.

Re:Open Source (1)

BlueNoteMKVI (865618) | more than 5 years ago | (#26471907)

The thing I like about open source is that everyone can make the software better. Why a company wouldn't want to produce source code, is beyond me. I think they fear that they will be viewed as incompetent when several mistakes are found in their code, or that sneaky randomizer function call rears its ugly head.

It's not that hard to understand, really. The Intoxilyzer folks are more concerned with making (more) money than they are with making the world a better place, writing better code or producing a better breathalyzer.

Most open-source software authors produce code because they LIKE it. Maybe they get warm fuzzies out of making the world better with their application, more likely they just like writing code. Only a very small percentage actually make money at writing open source code - and most of that income comes from either customized versions of their software or from selling related hardware and support services.

Most software companies (including companies such as this one that sell hardware with embedded custom soft/firmware) produce code to make money. If they release the code as open source, someone else can take it and produce a similar product that functions the same and costs less. Yes, you can put licensing restrictions in that prevent that, but those restrictions are very rarely enforced. Unless you patent your methods (a whole other can of worms) someone can take your methods, re-write the code differently and release it with no legal ramifications whatsoever.

Basically, open-sourcing your code allows others to capitalize on the time you spent in R&D. The open source movement considers this a good thing. Most commercial software companies consider it a bad thing. There's room for both in the world.

Re:Open Source (1)

gbulmash (688770) | more than 5 years ago | (#26472189)

I guess this begs the question of just what "open source" means. Just because you can look at the source does not mean you can legally copy or modify it. To legally copy or modify it, you need a license. That license may be a paid license or it may be one of the free open source licenses like the GPL, the BSD license, or a Creative Commons license.

People who implemented or modified and implemented the breathalyzer software that was revealed at trial would still be guilty of various infractions if the breathalyzer manafacturer asserted copyright, whether or not they were compelled to reveal it by a judge.

. A lot of people tend to think that viewable source means "open source," but we've tended to equate "open source" with software and source that are released under a free license. "Viewable" source (i.e. if you paid a fee to get access to the windows source code so you could hack better drivers) and "open" source (like Apache or Linux) are very different animals, IMO.

- Greg

Better code? (0)

Anonymous Coward | more than 5 years ago | (#26471499)

Wouldn't that be a shame if releasing their code, allowed a defense expert to find flaws in it and they then had to write better code?

Re:Better code? (2, Insightful)

Kokuyo (549451) | more than 5 years ago | (#26471639)

Frankly, if they found a fundamental flaw in this thing, wouldn't that mean that ALL cases in the past where it had been used would have to be reevaluated? Or retroactively dropped altogether?

Imagine that, would people whose drivers license had been revoked and who thus suffered a loss of income or anything of that sort suddenly be entitled to compensation?

Blood testing (1)

m0s3m8n (1335861) | more than 5 years ago | (#26471537)

I have never been in this situation (where is the wood) but I have to wonder: If an officer administers a breath test and it is positive (above legal limit) why don't they get a quick blood sample for lab analysis? But then again, given this ruling, could the defense then ask for the source-code for the laboratory equipment used to test the blood?

Re:Blood testing (3, Interesting)

gbjbaanb (229885) | more than 5 years ago | (#26471769)

in the UK, the hand-held testers are indicative only. If you fail the test, you're taken to the station for a breath test on a seriously big machine (think old minicomputer sized) or have a blood test, taken by a doctor, for use in a subsequent court case.

I'm sure there are all kinds of health-and-safety, human-rights, and civil-liberties reasons why blood samples cannot be taken at the roadside by a police officer.

Re:Blood testing (1)

m0s3m8n (1335861) | more than 5 years ago | (#26471937)

remembering back to Driver's Ed (1979) I think it was said that the human body metabolizes about 1 drink per hour. So if it takes an hour to get a blood sample, a suspect could fail a breath test but pass a blood test just by metabolism. Would a court factor in the time between inital arrest and blood sample collection?

Re:Blood testing (3, Informative)

IndustrialComplex (975015) | more than 5 years ago | (#26472107)

remembering back to Driver's Ed (1979) I think it was said that the human body metabolizes about 1 drink per hour. So if it takes an hour to get a blood sample, a suspect could fail a breath test but pass a blood test just by metabolism. Would a court factor in the time between inital arrest and blood sample collection?

Yes, alcohol is metabolized at a fairly regular rate. Since the time you were pulled over is known, and the time the test was administered is known, when you combine that with the relatively high accuracy/precision of the blood test you can determine what the BAC was at the time the person was driving.

Re:Blood testing (1)

crow (16139) | more than 5 years ago | (#26471987)

Same in Massachusetts. You can refuse the road-side breath test without losing your license, but they'll just assume it's positive and bring you in for the full test. If you refuse the test at the station, you automatically lose your license, and they have to prosecute you based on other evidence.

Re:Blood testing (1)

larry bagina (561269) | more than 5 years ago | (#26471851)

They don't need source code for the laboratory equipment. When they draw blood, they keep a sample that you can have tested in your own laboratory. When you breath into a machine, there's no evidence whatsoever, except for a printout (or a number the officer wrote down).

Re:Blood testing (1)

Gyga (873992) | more than 5 years ago | (#26471909)

Blood test require trained personal to administer and a warrant. It takes time (time=money) to get a warrant (the breath test is the probable cause).

The problem is that people have to be properly trained to stick a suspect's fingers.

Hahahaha. (3, Interesting)

darkmeridian (119044) | more than 5 years ago | (#26471553)

No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over. Even if the prosecutors move to blood test, the defendants will require a medical doctor or lab technician to testify as to the nature of the exam and how the test works, and perhaps the manufacturer of the reagents used in the tests have to verify that they are what they are. Tons of money have to be spent by the DA's office, which means higher taxes. Meanwhile, prosecution of drunk driving will go down, and more drunk drivers will be on the streets.

Everyone wins!

But ask yourself: if a judge dismissed exculpatory DNA evidence because the defense didn't procure a geneticist/scientist to testify on the stand, what would you say?

Re:Hahahaha. (1)

m0s3m8n (1335861) | more than 5 years ago | (#26471663)

You beat me to it. EXACTLY. I guess a reasonable compromise would be to have an independent review of the code under NDA.

Re:Hahahaha. (2, Insightful)

DJ Jones (997846) | more than 5 years ago | (#26471801)

No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over.

Ever heard of innocent before proven guilty?

The point is, these people may not be drunk drivers at all but rather the victims of a cheap, inaccurate black-box device that would probably rate you intoxicated after a sip of NyQuil.

I hope that the next time a software company doesn't want to disclose it's bullshit algorithms under the "trade secret" claim that it's your wrongfully convicted ass in handcuffs before a judge with your life and reputation is on the line. Maybe then you'll get the point.

Re:Hahahaha. (1)

shawn(at)fsu (447153) | more than 5 years ago | (#26472013)

This assumes the algorithms are in fact BS. Of course the defense attorneys will say they are flawed and the DA would have to get experts to prove they are not. So if they do away with private companies machines FL I assume could still put out a proposal to have a company develop a machine for the state of Florida source code included. Or they could just forgo breath test and use field sobriety tests and if you fail move right to the blood test. Refuse the blood test and loose your licensee for period of years. (The more the better)

Re:Hahahaha. (5, Insightful)

Hairy Heron (1296923) | more than 5 years ago | (#26471865)

Yeah it's utterly horrible that people would actually have to make sure that the evidence they are using against people is actually accurate and not being tainted by flaws in the equipment used or their methodologies. Oh the horrors of that!

Re:Hahahaha. (4, Insightful)

blhack (921171) | more than 5 years ago | (#26471873)

No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over.

I think that what it actually means is that a bunch of people who supposedly violated some arbitrary limit on the limit of a specific substance in their bloodstream might have their lives un-ruined.

Is this going to matter for the people who were obviously intoxicated? No. This is going to matter for the people who passed a field sobriety test, didn't appear to be intoxicated, but admitted to having a beer that night and were required to take a breathalyser.

I don't know about the rest of you, but I live in Phoenix, AZ. We have got some of the most absurd drink driving laws in the country. They recently changed the law from .08 to "impaired to the slightest degree". Thats right, boys, did you use mouthwash before heading out tonight? Well, you're spending a month in jail and losing your license.

Wanna cut drunk driving? Keep the f*cking public transportation system running until 3:00am. Provide a free (or at least cheap) taxi service. Don't make a bunch of "creative" parking laws so that if you decide to take a cab home your car gets towed.

Re:Hahahaha. (1)

Technopaladin (858154) | more than 5 years ago | (#26471881)

False analogy. Exculpatory evidence the Breathalizer was not.

If you thought you were not drunk. The machine said you were and no one was really sure how the machine worked I would like an expert to check in to the validity of the machine. Its florida they breathilizer isnt the ONLY source for a conviction. I you Failed the sobriety test and the breathilizer they can get you on the sobriety(so long as you dont suffer from a medical conditon). If you pass the sobriety and fail the breathilizer I would want my lawyers to look into the machine too.

Re:Hahahaha. (2, Insightful)

TubeSteak (669689) | more than 5 years ago | (#26471905)

No. It means a bunch of drunk drivers will be on the streets free to run whoever they want over.

The law protects everyone.
You don't get to bend/break it because you think/know someone is a criminal.
I'm not sure I can overstate just how important Due Process is to our legal system.

But ask yourself: if a judge dismissed exculpatory DNA evidence because the defense didn't procure a geneticist/scientist to testify on the stand, what would you say?

I'd say that's either a sign of ineffective counsel or that you don't have enough money to mount a vigorous defense. There are legal avenues for addressing the injustice of the first situation, but the second is entirely your own problem. Either way, you can bring it up on appeal and try to get a new trial.

Re:Hahahaha. (1)

MaskedSlacker (911878) | more than 5 years ago | (#26472073)

Bullshit.

The defense's inability to get a witness is irrelevant so long as they have the opportunity.

The fundamental fact is that black box evidence should be illegal--having a breathalyzer that is not examined to ensure its positives are real is like having no chain of possession for evidence--in either case the evidence cannot be trusted and should be thrown out.

More drunk drivers will not be on the streets because there is already almost no punishment in most cases. The solution is to up the punishment (which should be a permanent ban from operating vehicles without an ignition interlock at minimum, and no that wouldn't bar someone from driving a dying man on the street to the hospital in a car without an interlock, necessity is a valid legal defense).

Re:Hahahaha. (3, Insightful)

Kawolski (939414) | more than 5 years ago | (#26472201)

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

Can you imagine death-penalty murder trials with "we know you did it because this machine we bought from MegaProfitTechCo analyzed the crime scene and says you're guilty." "How does that machine even work? DNA profiling?" "Can't tell you, it's a trade secret and very complicated, but it took a piece of evidence and said you're guilty."

Re:Hahahaha. (1)

Jason Levine (196982) | more than 5 years ago | (#26472269)

I wholeheartedly agree. In fact, I'll go one further and propose that we skip trials altogether. If a police officer arrests you for something, you've got to be guilty, right? There's no other explanation as to why you were arrested. So you would go right to jail and we would save on court/lawyer costs. Even better, save on the jail costs and allow officers to shoot people instead of arresting them. If an officer was going to arrest someone, they obviously committed a crime and if they committed a crime, they're just a worthless drain on society. The increased cost in bullets could be offset by auctioning anything that the dirty stinking criminal had on him/her when they were shot. {END HEAVY SARCASM MODE}

Fish. (4, Interesting)

girlintraining (1395911) | more than 5 years ago | (#26471559)

I will bet money on one of three outcomes:

1. Breathalyzers cease to be used.
2. The source code will be released and showed to have MAJOR flaws or an algorithm that is not scientific at all.
3. The source code will be suddenly patched and every system will be required to be updated. The "new" source code will be released. Prosecution rates plummet, for some "unknown" reason.

Re:Fish. (0)

Anonymous Coward | more than 5 years ago | (#26472011)

If the legal limit of intoxication is calibrated on machines that don't properly rate your BAC, but are consistent in their improper ratings, how does it matter if they readings are not accurate. Maybe we'll find that with correct algorithms a 0.03 BAC is actually what people have been at when getting tickets for 0.08, at which point the legal limit will be adjusted to 0.03.

It's not as if the legal limit is locked in and nonadjustable. As it stands the BAC used by cops is like a benchmark. It isn't necessarily the actually BAC, but it isn't necessary to know the exact BAC if limits are based on the benchmark.

An analogy, albiet potentially terrible, would be MPH to KPH. If we changed from miles to kilometers we wouldn't just leave the speed limits at "65" units, we would realize that miles and kilometers are different and adjust the values to match the new system.

Re:Fish. (2, Interesting)

faloi (738831) | more than 5 years ago | (#26472221)

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

Double-edged sword... (5, Insightful)

pla (258480) | more than 5 years ago | (#26471651)

As much as I like hearing about cases of stickin' it to Da Man, I don't know that we should necessarily celebrate this decision quite so much...

All software contains bugs. The defense will find some, and even if they only affect accuracy at the 7th decimal point, the case will get thrown out by a jury based on reasonable doubt. And this doesn't apply just to the current case, but to nearly any legal case using machine-generated evidence. The court allows DNA evidence? How about the firmware in the sequencing machine? Drug test came back positive? Let's see how Agilent's HPLC code rounds in integration.

Now, in some cases (*cough* Diebold *cough*) we may have a valid gripe against a closed-source implementation. But in most cases... Not to make this a case of "for the children", but do you want drunks behind the wheel? Screw the children (calm down, Mr. Jackson, I didn't mean it like that), I don't want to DIAF because someone can't stop at two beers.

Re:Double-edged sword... (1)

iamacat (583406) | more than 5 years ago | (#26471931)

Have you ever seen a medical device - a thermometer, a blood sugar meter or a blood pressure monitor - than always returns consistent results. I have seen a diabetic prick her finger twice and get 240 the first time and 110 the second. What makes you trust a single measurement from a device with complicated, unpublished source code that literally analyzes vapors? I think if a policemen collects a breath test, an urine test and a blood test and all show excessive BAC, no judge will demand the source code from all 3 equipment manufacturers.

Re:Double-edged sword... (1)

eakerin (633954) | more than 5 years ago | (#26471933)

The issue is not that people can/can't stop at two beers. It's that they could have stopped at one beer, waited 75 minutes for it to metabolize fully, then drive home. At that point the device could still say they are over the limit, due to a programming bug. We don't know how well it was implemented, what the failure conditions are, how it handles those failure conditions, etc.

So the issue is: Would you like to be convicted of a crime you didn't commit, all because some people can't stop at two beers?

Re:Double-edged sword... (2, Insightful)

IndustrialComplex (975015) | more than 5 years ago | (#26472027)

In the end, you don't need a breathalyzer result to obtain a DUI conviction. Many cop cars are equipped with cameras now, and a simple 30 second clip of a car weaving across lanes along with the Officer's testimony will convict the truly impaired.

The breathalyzer was just the 'slam dunk' of most prosecutions. 0.81 BAC according to the breathalyzer and w/o a slick attorney you were going to be convicted. Is it too much to ask that we don't rely on metrics for all of our laws? It is nice to know that if you are within 5% of parameter Y, you aren't breaking the law, but there are a lot of laws based on metrics, combined with mandatory sentences that result in some rather absurd cases.

If someone is drunk enough to be pulled over, then there would still be plenty of evidence that can be captured with a simple camera to capture the dangerous driver.

I feel the same about speed limits (as many who have driven on I-95 also feel). I'd rather see the guy doing 55 and weaving all over the place pulled over than the guy who is doing 75MPH, has both hands on the wheel, mirrors adjusted, and passing appropriately with the pace of traffic. However in the world of parameter based policing, the safer (faster) driver will be the one who ends up being punished.

Re:Double-edged sword... (1)

Poodleboy (226682) | more than 5 years ago | (#26472265)

I agree that there will be such bugs. Reviewing the code may or may not reveal them. It seems to me that if the question is one of whether or not the device works properly, then submitting to testing by an independent laboratory is a much better way to find out, and one that doesn't compromise the company. In my experience, we prove that we meet software requirements by testing, not by peer review.

Re:Double-edged sword... (0)

Anonymous Coward | more than 5 years ago | (#26472311)

The issue isn't about bugs, it's about error rate and tolerance. If it is shown through the code that there was an extremely high error rate (enough where the defendant *could* be innocent due to error), it should be thrown out as evidence. On the other hand, if the error rate is low to the point where it won't matter for the defendent, she would loose anyways. The key point here is disclose of the nature of the product.

(plus, it could always be "diebold" of a breathelizer, how would you know? all you get is a number...)

as for dna evidence and other things, why should they be held to any other standard? if they are used, they must be shown to be accurate or not (look at so called lie detectors, they been proven to have a high error rate). I'm not saying to do this for all cases but it must be shown ON RECORD at least once to prove it's usefullness (assuming they don't change it in some way)

It is because software can contain bugs that they must be reviewed. Charges even if small is important to be done fairly.

Why is a brethelyzer even being used as evidence (1)

coolsnowmen (695297) | more than 5 years ago | (#26471711)

I'm surprised that the company couldn't find a way around it. There are many tests admissible as evidence in court that don't have source code. They have to be proved accurate or in generally accepted by the scientific community.

Couldn't it have been proved accurate by using the Breathalyzer along with a blood test in X different situations with Y different people. If the company didn't already do that then it should be thrown out as evidence.

Also, why is a brethelyzer needed as evidence. Any test like that could be faulty. If someone fails a brethelyzer, why not bring them in for a blood test.

Re:Why is a brethelyzer even being used as evidenc (1)

Logical Zebra (1423045) | more than 5 years ago | (#26472127)

I agree. After all, polygraph tests aren't admissible, either.

Re:Why is a brethelyzer even being used as evidenc (1)

larry bagina (561269) | more than 5 years ago | (#26472163)

If you did a comparison of the BAC/breathalyzer under different scenarios, you'd find the breathalyzer gave a lot of false positive. Burp and the results will be wrong. Gargle with mouthwash and the results will be wrong. vomit and the results will be wrong.

Re:Why is a brethelyzer even being used as evidenc (1)

mog007 (677810) | more than 5 years ago | (#26472203)

People are convicted of DUI in Florida without blood tests. My father got nailed by a faulty reading, saying he was double the legal limit with only a beer and a half in his system over a 5 hour period.

The breathalyzer results are enough for a conviction in almost all instances.

You should read the article first... (0)

Anonymous Coward | more than 5 years ago | (#26471849)

Prosecutors must now decide whether to take the cases to trial without that evidence or reduce or dismiss the DUI charges.

The source code is not going to be released, the cases will likely be dropped. I live in Sarasota - I don't particularly like the idea of so many people that should be prosecuted for DUIs to be out on the road endangering my wife and myself. This is not justice, it is a get out of jail free technicality.

Now if only.... (1)

SCHecklerX (229973) | more than 5 years ago | (#26472031)

they'd do the same with voting machines....

Then again, code is too complex. Those electronic voting machines should never be used in the first place. The process should be simple to understand by ANYBODY who would cast a vote.

Objective vs. Subjective (1)

dex22 (239643) | more than 5 years ago | (#26472049)

If I am ever stopped, I'll ask for a Breathalyzer test, over a roadside sobriety test, any day of the week. I would much rather have a carefully designed, well calibrated machine prove in seconds that I'm sober, than give a cop the opportunity to make a subjective judgment about me.

To me, this looks like a case of a bunch of guys who got nailed over the limit, who are attacking the one plank of evidence against them. OK, so it may not be 100% accurate, it may only be 96% accurate, or 90% accurate, but that means if you were convicted with a BAC over .09, you were STILL over .08 regardless. I bet a lot of these people are convinced they were less lubed up than they actually were.

Anonymous Coward (0)

Anonymous Coward | more than 5 years ago | (#26472099)

www.myspace.com/an_anti_hero

This is america, so i'll use my freedom of speech, Fuck all these people, these criminals, these murders, stupid israel, stupid america, america is collapsing around us, oh god, oh shit, we're so fucking done for and doomed its pathetic oh god help us oahhha shit were doomed

What does CMI/Intoxilizer have to hide? (1)

Animats (122034) | more than 5 years ago | (#26472111)

One wonders what CMI has to hide. The software shouldn't be that complicated. The thing uses a Z80, after all. It's not like they have Windows CE in there. Yet CMI has accepted over $2 million in fines rather than disclose the source code.

Somebody should buy one, read out the ROM, and disassemble the code.

Not exactly... (4, Informative)

Tassach (137772) | more than 5 years ago | (#26472117)

What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret

No, what it means is that corporations that sell equipment THAT PRODUCE EVIDENCE TO BE USED IN CRIMINAL CASES can't hide behind trade secret laws. It's a very narrow set of circumstances. If the machine isn't used to produce criminal evidence, it isn't affected. Things like radar guns and red light cameras could be affected by this ruling. General consumer products are not.

The breathalyzer is effectively acting as a witness against the defendant in a DUI case. The defendant has a CONSTITUTIONALLY GUARANTEED right to cross-examine witnesses and challenge their credibility and accuracy. In the case of a machine, this can include subjecting the machine's design to scrutiny by a defense expert.

Seems pretty open & shut to me: if they don't disclose the engineering data necessary to validate the accuracy of the machine, then the evidence produced by the machine is inadmissible.

Since DUI is based on specific blood alcohol levels, they would have to drop those charges and settle for something where they could get a conviction based solely on the arresting officer's eyewitness testimony (EG reckless driving or other specific moving violations).

What I want to know (1)

Mad-cat (134809) | more than 5 years ago | (#26472191)

What I want to know is why CMI has been allowed to be in contempt of court for so long. There have been past court orders demanding the source code, which they have ignored without consequences. They should have been raided by Federal agents with search warrants empowering them to execute the earlier court orders.

Hmm.. (1)

Jaysyn (203771) | more than 5 years ago | (#26472309)

Nice to see my home state in a story that doesn't involve politicians or voters being retarded.

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