Beta

×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

MN Supreme Court Backs Reasoned Requests For Breathalyzer Source Code

Soulskill posted more than 5 years ago | from the if-you-work-for-it dept.

The Courts 199

viralMeme writes with news that the Minnesota Supreme Court has upheld the right of drunk-driving defendants to request the source code for the breathalyzer machines used as evidence against them, but only when the defendant provides sufficient arguments to suggest that a review of the code may have an impact on the case. In short: no fishing expeditions. The ruling involves two such requests (PDF), one of which we've been covering for some time. In that case, the defendant, Dale Underdahl simply argued that to challenge the validity of the charges, he had to "go after the testing method itself." The Supreme Court says this was not sufficient. Meanwhile, the other defendant, Timothy Brunner, "submitted a memorandum and nine exhibits to support his request for the source code," which included testimony from a computer science professor about the usefulness of source code in finding voting machine defects, and a report about a similar case in New Jersey where defects were found in the breathalyzer's source code. This was enough for the Supreme Court to acknowledge that an examination of the code could "relate to Brunner's guilt or innocence."

cancel ×

199 comments

Sorry! There are no comments related to the filter you selected.

These guys are no heroes (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#27799459)

I'd hate to see Slashdot supporting these wreckless drunks just because they claim to be l33t haX0rs.

Re:These guys are no heroes (4, Insightful)

houstonbofh (602064) | more than 5 years ago | (#27799509)

I'd hate to see Slashdot supporting these wreckless drunks just because they claim to be l33t haX0rs.

That is the point. If the machine is faulty, they are not "drunks." Kinda like that printer wasn't really seeding Smells Like Teen Spirit. Only by examining the procedure for determining that state, can we know.

Re:These guys are no heroes (0, Troll)

teg (97890) | more than 5 years ago | (#27799719)

That is the point. If the machine is faulty, they are not "drunks." Kinda like that printer wasn't really seeding Smells Like Teen Spirit. Only by examining the procedure for determining that state, can we know.

They are innocent until proven guilty. That said, I'd say the odds are rather large that these were driving under the influence and are now fishing for anything that potentially could be used. What about blood tests? Aren't those mandatory if the breathalyzer is positive?

Any code contains bugs. As the input to the process is unknown / contested, noone can prove that a specific path is correct/incorrect here. But in addition to normal software testing, devices like this are tested heavily in black box testing...

Re:These guys are no heroes (5, Insightful)

DarkOx (621550) | more than 5 years ago | (#27800039)

I'd hate to see slashdoters ignoring the basic principles of our justice system just to pursue some prejudice against accused drunk drivers.

Like it or not the foundation of out criminal justice system is based on the idea its better to let the guilty go free then the innocent be punished. It might be "PC" to "get tough on drunk driving," but this is a nation of laws or at least it used to be. The burden of evidence is supposed to be on the state. If the state is using equipment that must have its inner workings concealed as evidence. I think in the name of justice we must assume that without other pretty damning evidence its not sufficient to prove beyond a reasonable doubt guilt.

If you can't show me how it works or show that it does work in a double blind test with a sufficient sample size, it would not be a good enough argument for me serving on a jury to convict.

The state is much more powerful than and individual the burden of proof is supposed to be on them. A few numbers on an LED display connected to some box you blow in does not cut it, unless you can tell me a lot about what those numbers mean, how they are determined, if its accurate.

Re:These guys are no heroes (1)

bkpark (1253468) | more than 5 years ago | (#27800775)

If you can't show me how it works or show that it does work in a double blind test with a sufficient sample size, it would not be a good enough argument for me serving on a jury to convict.

In a statistical test, we would also have to apply a pretty strong definition of "it does work". If it works correctly 99% of the time, that means it's falsely accusing innocents 1% of the time.

Just as one can't prove a negative, it would be impossible to produce a breath analyzer that works 100% of the time under every imaginable condition (temperature, humidity, chemicals in the air ...), but we do need to set strong enough standards that our conscience can deal with the small fraction of innocents accused and "proven" guilty by the machine.

Or we could stop relying on a machine for our justice system and require multiple corroborating evidences (for one, sobriety tests, which should yield fairly good indicator whether someone is too drunk to drive, especially in conjunction with breath analyzer results) before anyone is accused or convicted of drunk driving.

Re:These guys are no heroes (1)

Roger W Moore (538166) | more than 5 years ago | (#27801127)

for one, sobriety tests, which should yield fairly good indicator...

There is a test - it is called a blood test. Since the legal limit is set in terms of the amount of alcohol in your blood this is the only completely accurate way to determine whether you are over the limit.

Re:These guys are no heroes (1, Insightful)

torstenvl (769732) | more than 5 years ago | (#27800181)

If the machine is faulty, they are not "drunks."

Um. Wrong. Are you saying there were no drunk drivers before breath machines? Whether or not someone was drunk driving doesn't depend on the machine. Blood tests, failing FSTs, officer observations of your behavior and smell... any of these things are sufficient to convict beyond a reasonable doubt.

"Beyond a reasonable doubt" doesn't mean "beyond a shadow of a doubt." A possible or hypothetical doubt you have because you don't have a machine reading, or fingerprints, or a DNA sample isn't reasonable doubt. A reasonable doubt is one based on reason and the facts in evidence.

If the prosecution has addressed each element of the crime, and for each element you have no reason to doubt it, then conviction is proper.

Re:These guys are no heroes (1)

burroughsj1 (1273158) | more than 5 years ago | (#27800747)

Blood tests, failing FSTs, officer observations of your behavior and smell... any of these things are sufficient to convict beyond a reasonable doubt.

While you're not quite right about what it takes to convict in a DUI case, you are right in saying that you don't necessarily need breathalyzer results. Hence the ruling: no source code unless it is going to bear on the outcome of the case. If the test results aren't vital to determining guilt, then there is no issue. In many cases, however, they are. In such cases, it's important to know how the test works, and if there is some fundamental problem with its reliability. It's absurd to say that you don't need to know if the test is good or not, since there's other evidence. If that were true, there would be no need for the test in the first place.

Re:These guys are no heroes (1)

shentino (1139071) | more than 5 years ago | (#27801043)

Defects in the source code IMO constitute reasonable doubt just as if you were given a speeding ticket based upon an improperly calibrated speed gun (kangaroo nature of traffic court notwithstanding)

Additionally, if the source code is suspect enough to invite a challenge to probable cause, then that endangers any subsequent blood tests based on "fruit of a poisoned tree", particularly if the state knew about defects.

Re:These guys are no heroes (0)

Anonymous Coward | more than 5 years ago | (#27799649)

You're already modded as flamebait, so I probably shouldn't respond. Nevertheless, the whole point is that the machine can be FAULTY... thus they weren't drunk. Wouldn't YOU be pissed if you knew you weren't drunk and a magic machine with secret innards said you were?

Re:These guys are no heroes (3, Funny)

mccalli (323026) | more than 5 years ago | (#27799717)

Wouldn't YOU be pissed if you knew you weren't drunk

Paging Rene Descarte - Monsieur, we need you urgently....

Cheers,
Ian

Re:These guys are no heroes (2, Insightful)

maxume (22995) | more than 5 years ago | (#27799951)

GP likely speaks American English.

Re:These guys are no heroes (0)

Anonymous Coward | more than 5 years ago | (#27799953)

But . . . but . . . "pissed" IS "drunk" . . . and, umm, "grok" is "water" . . . and "Porky" es un cerdo . . . and, and . . . and if one thinks one's pissed, then therefore does one think one's "am"?

Re:These guys are no heroes (0)

Anonymous Coward | more than 5 years ago | (#27800217)

the whole point is that the machine can be FAULTY... thus they weren't drunk

God, I hope you never write software for me or any company I come into contact with.

"Well you see, the print notification daemon that lets us know when the print job succeeded crashed... so none of those confidential documents got printed. Don't worry, your employee who is walking to the printer now won't find the private email/dirty pictures/termination letter draft/whatever."

The breathalyzer doesn't MAKE someone drunk. Alcohol does. A person who has had too much alcohol is drunk, no matter what a machine says. What the machine says is meaningless, especially if the machine is faulty.

No intelligent person could possibly think X is false, just because the thing that said X was true was faulty.

Re:These guys are no heroes (1)

Arthur Grumbine (1086397) | more than 5 years ago | (#27800363)

I'd hate to see Slashdot supporting these wreckless drunks just because they claim to be l33t haX0rs.

Well, if they haven't been in an actual car accident it does seem that they shouldn't be as vilified as you're implying...

Re:These guys are no heroes (1)

amRadioHed (463061) | more than 5 years ago | (#27800663)

Well since he said they were wreckless, not reckless, I think he was inadvertently not vilifying anyone.

Re:These guys are no heroes (1)

Devout_IPUite (1284636) | more than 5 years ago | (#27800955)

Regardless of the laws, BAC should probably be as close to zero-tolerance as is feasible due to non-drink products that contain trace amounts of alcohol, so I'd be less than pleased if they got off because they might have been as low as 0.075 BAC instead of the 0.08 the hardware tested them at.

Hm. (2, Interesting)

Bruce Perens (3872) | more than 5 years ago | (#27799467)

Does this mean that if a defendant presents a copy of Bruner's exhibits, he's likely to get the go-ahead in that state?

Re:Hm. (3, Interesting)

spun (1352) | more than 5 years ago | (#27799547)

That is mentioned as a consequence of the ruling. Now it remains to be seen whether the manufacturer will release the source code. If they won't, presenting a copy of Bruner's exhibits will be a 'get out of jail free' card for drunk driving in Minnesota. Which will mean the state will have to go with a manufacturer that WILL provide the source. Nice.

Re:Hm. (2, Interesting)

Bruce Perens (3872) | more than 5 years ago | (#27799561)

It means that all states will have to raise standards for the embedded code in those things. Embedded code often really stinks.

Re:Hm. (5, Funny)

spun (1352) | more than 5 years ago | (#27799585)

Wait, wait, wait. You're saying embedded code often stinks? Don't we use embedded code in voting machines? My God, has anyone checked them? This sounds like it could be a real problem, I think we need to notify the authorities.

Re:Hm. (2, Interesting)

Arthur Grumbine (1086397) | more than 5 years ago | (#27800401)

... I think we need to notify the authorities.

I dunno, maybe we should vote on that.

Re:Hm. (1, Interesting)

spun (1352) | more than 5 years ago | (#27800745)

Well I vote [NO]. What? I meant to type [NO]. What's going on here?

Re:Hm. (1)

Dhalka226 (559740) | more than 5 years ago | (#27800947)

Be sure to bring some exhibits. They love that sort of thing.

Re:Hm. (1)

spun (1352) | more than 5 years ago | (#27801153)

What, you mean something like twenty seven eight-by-ten colour glossy photographs with circles and arrows and a paragraph on the back of each one explaining what each one was? Don't you know justice is blind?

Re:Hm. (2, Interesting)

profplump (309017) | more than 5 years ago | (#27799651)

Or they could go with a detection method that's actually accurate and verifiable, rather than one that makes a whole slew of assumptions about your body and leaves no sample for third-party testing. If we're supposed to be measuring BAC, couldn't we just sample your blood?

But that's contrary to the prohibitionist agenda that defines "drunk" using arbitrarily low readings from a breathalyzer, so it's unlikely to occur.

Re:Hm. (1)

Bruce Perens (3872) | more than 5 years ago | (#27799789)

If you refuse the breathalizer, they take your blood instead. I suspect that if you fail the breathalizer, they try to take your blood as well.

Re:Hm. (2, Informative)

Mr. Freeman (933986) | more than 5 years ago | (#27799879)

Here in Colorado the breathalizer is optional. Of course, refusal to take the test means they can haul you off to jail.
Once they take you to whatever office you can take either:
A) Blood test
B) Brethalater (desk-top version of a breathalizer, presumably more accurate)

If you refuse to take A or B then your license is revoked for a year.

Re:Hm. (1, Redundant)

d'fim (132296) | more than 5 years ago | (#27799991)

Minnesota's implied consent law carries a breathalyzer refusal penalty of an automatic 12 month driver's license revocation.

Re:Hm. (5, Informative)

d'fim (132296) | more than 5 years ago | (#27800359)

Correction:
You have to refuse the breathalyzer and the blood test for the penalty to kick in.

Re:Hm. (1)

phantomcircuit (938963) | more than 5 years ago | (#27799895)

Mod parent up. His post is 100% correct. In the United States if you refuse a Breathalyzer you will be administered a blood test (not that this can take several hours in which you may or may not sober up...).

Re:Hm. (5, Informative)

Zero__Kelvin (151819) | more than 5 years ago | (#27800007)

"Mod parent up. His post is 100% correct. In the United States if you refuse a Breathalyzer you will be administered a blood test (not that this can take several hours in which you may or may not sober up...)." [Emphasis Added}

This is not a federal issue, and the procedures vary from state to state. In Pennsylvania you have to submit blood even if you take a breathalyzer and plead guilty or they take your license for a year. In Massachusetts you can take a breathalyzer or a blood test, but can only do the latter if you can afford to pay a personal physician to show up at the station and perform the test. (Read: Aren't poor and/or ignorant)

So you see, different states abuse citizens right in different ways ;-)

Re:Hm. (2, Insightful)

bbhack (98541) | more than 5 years ago | (#27800911)

In Massachusetts you can take a breathalyzer or a blood test, but can only do the latter if you can afford to pay a personal physician to show up at the station and perform the test. (Read: Aren't poor and/or ignorant)

It's good to know that Massachusetts hates the poor and ignorant. I was unclear on that. Any state that hates poor and ignorant can't be all bad.

Re:Hm. (1)

pknoll (215959) | more than 5 years ago | (#27800123)

In Minnesota, you may request a blood test in place of the field breathalyzer, which (according to my attorney) you SHOULD do.

You should also decline (again, according to my attorney - consult your own even if you live in MN) to take any of the other "field sobriety tests" such as walking toe-to-heel, lifting one foot and counting, etc. they simply allow the officers to collect more evidence against you. You are not required to submit to these tests.

Any delay in taking the blood test during transport to the medical facility etc. is not relevant, as the rate of metabolism of alcohol in the body is well understood, and your B.A.C. at the time of the stop can be determined.

Re:Hm. (1)

Workaphobia (931620) | more than 5 years ago | (#27800647)

In NY, implied consent is the reigning rule. Although you constitutionally can decline a test, doing so will result in penalties of one form or another.

Re:Hm. (1)

dryeo (100693) | more than 5 years ago | (#27800545)

Can they just take your blood? Here in Canada taking your blood is considered the most serious form of search and not lightly allowed.
It is only allowed (with a search warrant which can be faxed and presented to you the next day) in the case of an accident where the driver is unconscious. Also they have to take 2 samples so you can ask for one to get independently tested.
Refusing to give a breath sample means being charged with failure to blow which carries the same penalties as DUI. Also note that impaired and failure to blow are Federal criminal statutes (as are all criminal statutes).

Re:Hm. (1)

d'fim (132296) | more than 5 years ago | (#27800691)

IANAL, but in Minnesota one "implies consent" to testing when signing the driver's license application -- and drivers from out of state are subject to the same law when driving in Minnesota. One can refuse testing (thereby violating the "implied consent") but then the license is revoked for a year.

not necessarily (1)

Reality Master 201 (578873) | more than 5 years ago | (#27799829)

If they won't, presenting a copy of Bruner's exhibits will be a 'get out of jail free' card for drunk driving in Minnesota

He could still be found guilty of DUI assuming other evidence was convincing; and for that matter, they could still cart people to a hospital for a blood test.

Re:Hm. (1)

ari_j (90255) | more than 5 years ago | (#27799945)

Breath tests are not the only tests used. Some states don't even permit you to use evidence of a breath test to convict a person of DUI. You have to draw blood. Of course, the breath test is still a pretty big stick to be hit with: It gives the police probable cause to arrest you and do the blood test, and declining to take a breath test will get your license automatically revoked. I don't know the Minnesota rules on using breath test results in court, and I haven't read this decision so I don't know if you can use refusal to provide source code to attack probable cause.

Fishing expeditions (4, Interesting)

Brian Gordon (987471) | more than 5 years ago | (#27799477)

So essentially challenging evidence gathering methods is insufficient, but making colorful posters and waving around a PhD is fine?

Re:Fishing expeditions (4, Informative)

Bruce Perens (3872) | more than 5 years ago | (#27799495)

At times I have been an expert witness. I look at the evidence, and make a reasoned finding which I explain what I think, in terms a layman can apprehend, to the court reporter. If I can't ethically testify in the customer's favor, I tell them so and end the engagement before there is a chance for me to testify.

My cases rarely have much to do with a judge, because civil cases tend to settle. And then get sealed, so you can't see them.

Re:Fishing expeditions (1)

dada21 (163177) | more than 5 years ago | (#27799517)

My cases rarely have much to do with a judge, because civil cases tend to settle. And then get sealed, so you can't see them.

I think being an expert witness in a civil trial is vastly different than being called to testify for a criminal case. In civil cases, the penalties are financial and usually end up being worth settling because the legal costs can be more excessive than the settlement costs.

You can't settle criminal cases easily, so shopping for an expert to prevent jail time probably has a heavier weight than finding one to prevent a financial loss or catastrophe.

It's funny that you mention that your job is to produce expert testimony in laymen's terms, when the lawyers (and the judge) do the absolute opposite.

Re:Fishing expeditions (4, Interesting)

Bruce Perens (3872) | more than 5 years ago | (#27799545)

I've never found it very difficult to understand the lawyers and judge's case findings. Yes, they use a little Latin, but you can learn the 100 most used words and look up anything more that comes up on the web. And they cite cases, which you can look up too.

Are you talking about contracts?

Re:Fishing expeditions (1)

dada21 (163177) | more than 5 years ago | (#27799579)

I also understand most legal gibberish (as an anarcho-capitalist, if it is law-focused, it's gibberish). I would wager one year's income that 9 out of 10 people (my definition of "laymen") would not be able to.

The court wants/demands/expects technical terms and ideology laid out in a way than 9 out of 10 people would understand. The garbage they spew in response wouldn't meet the standards to what they expect.

Re:Fishing expeditions (1)

Bruce Perens (3872) | more than 5 years ago | (#27799601)

I would wager one year's income that 9 out of 10 people (my definition of "laymen") would not be able to.

Yeah, because they've never learned words like "cloture". But that's the framework that they function in every day, even if they don't think about it much. Nobody taught me that either, I guess I just took the trouble to learn.

Re:Fishing expeditions (2, Interesting)

Jane Q. Public (1010737) | more than 5 years ago | (#27799919)

Nevertheless, several of our Founding Fathers expressed the opinion that the law should be restricted to (and interpreted as) English as spoken by the common man at that time. Latin terms and legalese were perceived as an enemy to freedom even then.

Re:Fishing expeditions (1)

Brian Gordon (987471) | more than 5 years ago | (#27800257)

Sure, how much clearer can it get than "all men are created equal"? Well, they really meant all white male landowners are created equal. Trial by jury and due process - Sure, it's in the constitution! Well... if you're not an enemy combatant. Torture? Absolutely illegal- oh you meant waterboarding, that's not torture. Cruel and unusual punishment? What are you talking about, the lethal injection is quite painless and execution can hardly be called historically unusual.

The Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes ... land, sea, and air forces, as well as other war potential, will never be maintained.

No silly, it doesn't say anything about spending 4 trillion yen per year on self defense forces [wikipedia.org] .

The key is to have specific laws in legalese (that are flexible enough to remain relevant..) that the press can summarize in plain english/spanish.

Re:Fishing expeditions (2, Informative)

ari_j (90255) | more than 5 years ago | (#27800019)

Lawyers and judges not only cite sources, but are strongly encouraged to do so very precisely to an extent that other professions never do. This is both as a matter of professionalism and as a matter of getting your point across. It is more credible to read a sentence and see that it is cited to a specific paragraph in each of five different sources, with a relevant quote from two of them in parentheses, than it is to read a sentence and just see an author's name and a year after it. Making your points in a succinct, reasoned, and credible manner is how you win a legal argument. And that's probably why the APA citation format is less precise: If you don't convince someone your psychology term paper is right, nobody loses their money or freedom.

Legal arguments can be difficult to read if you lack the background. For instance, a legal brief about discretionary immunity to a lawsuit might not make much sense if you are not aware of what immunity means in that context or if you don't know that the way to avoid a jury ever hearing a case about an injury is to convince the judge that this mysterious "duty" thing is missing. But, given only a basic background, any properly-written legal memorandum or brief will be easy to read, with short sentences and well-organized paragraphs, not using obscure words.

By contrast, legal agreements are hard to read because the lawyers who write them spend the entire time trying to think of what loophole they might have missed and how to plug it. It borders on irony that their efforts to be absolutely clear in exactly what every term of the agreement means (and thereby preventing other lawyers from saying they mean something else) result in the agreement as a whole being nearly impossible to comprehend in its entirety at any one moment. The sickening part is that a brief is written for a more legally educated audience than a contract, since the person against whom the contract will be enforced is likely not to be an attorney or judge, and if a person can't understand a contract then he has a slightly better chance of getting out of it.

Re:Fishing expeditions (1)

Bruce Perens (3872) | more than 5 years ago | (#27799521)

If I didn't make it clear - my point above is that this is not "waving around a PhD". I don't have one anyway. The experts come in, they testify, and the judge or jury decide whether to believe them or not.

Re:Fishing expeditions (1)

blackest_k (761565) | more than 5 years ago | (#27800147)

I explain what I think, in terms a layman can apprehend.

Ladies and gentlemen I bring forth the evidence that this is probably a fallacy.

Bruce said http://perens.com/blog/2009/01/31/13/ [perens.com]
"Build kernel 2.6.28 or later. Earlier kernels won't help. Enable MTRR cleanup in the kernel configuration, setting Enable=1 and Spare MTRRs=1. You end up with 4 spare MTRRs, as it condenses the 8 used to just 4, and they have the same effect as far as I can tell."

However this was took to mean
https://help.ubuntu.com/community/AspireOne [ubuntu.com]
Pass enable_mtrr_cleanup to kernel in /boot/grub/menu.lst. (Explanation of problem at: http://perens.com/blog/2009/01/31/13/ [perens.com] )

I can only say thanks to bruce I built my first kernel successfully ,however clearly theres a difference between what he said and what some people thought he said.
I don't know why but I finished up 2 free mtrrs not 4.

Re:Fishing expeditions (3, Interesting)

houstonbofh (602064) | more than 5 years ago | (#27799525)

So essentially challenging evidence gathering methods is insufficient, but making colorful posters and waving around a PhD is fine?

Yes. Like a slashdot legal opinion is worthless, and someone who has passed the bar has value. Who is questioning the procedure is relevant.

Re:Fishing expeditions (5, Funny)

JustNiz (692889) | more than 5 years ago | (#27799707)

I think the problem here is that the guy caught drunk-driving didn't pass the bar. He stopped and went in.

Re:Fishing expeditions (1)

StormReaver (59959) | more than 5 years ago | (#27801161)

> He stopped and went in.

And not necessarily in that order.

Re:Fishing expeditions (1)

Brian Gordon (987471) | more than 5 years ago | (#27800543)

He wasn't some armchair blogger he was actually the one being sued. Who has more right to defend the defendant than the defendant himself?!

Re:Fishing expeditions (1)

codegen (103601) | more than 5 years ago | (#27799595)

How did this get marked interesting? What the MN supreme court said is that you cant just say "I want to look at the code because there might, possibly, be something wrong with it", you have to give some idea of *what* you think might be wrong with it. Having someone with expert qualifications to testify on your behalf also strengthens the argument.

Re:Fishing expeditions (2, Insightful)

justinlee37 (993373) | more than 5 years ago | (#27799609)

That's pretty circular logic. How can we speculate as to what might be wrong with it when we can't even see it?

Re:Fishing expeditions (1)

Zero__Kelvin (151819) | more than 5 years ago | (#27799687)

Judge: What do you think might be wrong with it?
Me: I think it might suck wind, like 90% of the proprietary code in production use today.

Re:Fishing expeditions (1)

laughingcoyote (762272) | more than 5 years ago | (#27799711)

Keep in mind that most judges do try to strike a balance between allowing parties to gather necessary evidence and ensuring that there's a reasonable likelihood what's being subpoenaed is relevant and necessary, and at least in theory aren't supposed to allow subpoenas just to fish.

That being said, when one is facing a criminal conviction largely based upon the results from an electronic device, "I want to know exactly how that device works, including its source code", seems on its face to be a request of relevance to the case, as showing that the device is flawed could have major ramifications as to whether a jury could reasonably doubt guilt. On the other hand, having it audited and tested and no flaws found could strengthen the prosecution's reliance on it. Without that ability to audit, we don't know if that electronic device in our case is more valid than a magic 8-ball.

Re:Fishing expeditions (3, Informative)

Trepidity (597) | more than 5 years ago | (#27799853)

I think they're more saying that you need some argument for why you're making the request. The fact that it's sufficient to make colorful posters and wave around a PhD just means that the MN court has put a fairly low bar on how good the argument has to be--- but they do require that you make some sort of argument. The guy whose request was rejected appears not to have made any argument at all for why retrieving the source code would plausibly help his trial; he just stated flatly that it might, which is not usually sufficient. The other guy made some effort to argue why the source code for this sort of device was relevant to his case.

Re:Fishing expeditions (3, Interesting)

Dhalka226 (559740) | more than 5 years ago | (#27800901)

I remember a discussion about this on /. awhile ago, and somebody brought up a point I couldn't quite remember. I hopped over to the wikipedia page to look for something about found this:

"Some breath analysis machines assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading."

and this:

"Breathalyzers assume that the subject being tested has a 2100-to-1 'partition ratio' in converting alcohol measured in the breath to estimates of alcohol in the blood [. . .] However, this assumed 'partition ratio' varies from 1300:1 to 3100:1 or wider among individuals and within a given individual over time."

I'm not sure what, exactly, I was remembering from the previous discussion; these may or may not be it. What I do remember is that it was essentially that, somewhere in this code, there are assumptions made and that the validity of the assumptions is going to directly affect the validity of the code.

Without knowing what, exactly, this machine is measuring and what it is assuming about the individual taking the test, it's impossible to know whether or not there's any reason to believe the test was inaccurate. Since both of these people argued this case to the Minnesota Supreme Court, I hope they both feel they're innocent.

I suppose this guy's lawyer should have made that argument. On the other hand, I don't think it's unreasonable for judges who are going to oversea DUI cases to understand that a breathalyzer is not, by any stretch, conclusive evidence. Use it to haul somebody in, by all means -- then get yourself a blood test. Bill the person being charged for the test for all I care. The breathalyzer itself should not be admissible in court. (I'm ignoring, by the way, the fact that something like having taken cough medicine could also affect the results.)

Re:Fishing expeditions (1)

maxume (22995) | more than 5 years ago | (#27799915)

That isn't what happened. One defendant stomped his feet and yelled "Source Code!", and the other stomped his feet and yelled (in a memo!!!) "The source code, which is blah, might be borken!". It seems like a pretty thin distinction to me, but it doesn't rest on antics or bamboozlement.

The good news is that anybody else can probably just submit a reasonably similar memo, they don't need to make a poster or track down a PhD to wave in the air.

Anyway, if the guy who gets to use the code doesn't manage to use it to successfully defend himself, it won't matter all that much.

too much code (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27799487)

Slashdot has way to much code running on the main page, my laptop's scroll can't keep up and goes bonkers.

Re:too much code (0, Offtopic)

Bruce Perens (3872) | more than 5 years ago | (#27799505)

Install noscript and flashblock. This is assuming you run firefox, which you probably should. Slashdot still works with javascript disabled.

Re:too much code (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27799769)

Firefox sucks.

"Slashdot still works with javascript disabled." (1)

wowbagger (69688) | more than 5 years ago | (#27800015)

"Slashdot still works with javascript disabled."

Sort of.

  For example, without Javascript and running Index2, you cannot delete messages from the system - all the delete anchors are of the form '<a href="#" onclick="stuff">' and so are useless.

And if you aren't running index2, you don't get notifications of responses and the like anymore - at least that has been my experience.

Re:too much code (-1, Offtopic)

houstonbofh (602064) | more than 5 years ago | (#27799541)

Slashdot has way to much code running on the main page, my laptop's scroll can't keep up and goes bonkers.

I will get modded off topic for this (and correctly so) but me too. Lately the front page of slashdot feels like running quickbooks in 256 meg of ram!

Re:too much code (0, Offtopic)

spun (1352) | more than 5 years ago | (#27799577)

My first attempt to run X-Windows was on a 386 with 16 megs of RAM, and it worked fine. We used VI in an xterm and that's the way we liked it! Web browsers, bah! Gopher still works, you know. Now get off my lawn.

Re:too much code (0, Offtopic)

Bruce Perens (3872) | more than 5 years ago | (#27799615)

16 MEGS! What luxury. As an early Debian developer, I think I had 4 megs in my system. I remember working a month to make the install disk boot from one floppy.

Re:too much code (0, Offtopic)

spun (1352) | more than 5 years ago | (#27800351)

But try telling that to kids these days, they mod you offtopic. I've half a mind to shake my cane at them.

First ... (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#27799529)

Frist Pwst!

but, seriously, this is an important step, for a person's rights, and ultimately, toward our collective safety ... it's a necessary evil to be subjected to this type of testing, so at least let's get it right oto prevent false positives ...

That's how science works (5, Insightful)

mister_playboy (1474163) | more than 5 years ago | (#27799549)

I assume breathalyzer evidence is given such great weight because it is "scientific evidence"? Then why shouldn't be subject to peer review... which is a central tenet of science? Without that, it's nothing more than a magical "black box, of unknown accuracy, and does not deserve to be considered "scientific proof"... throw away part of the valid process of science, and you debase the source of its supposed objectivity.

Re:That's how science works (0)

Anonymous Coward | more than 5 years ago | (#27799637)

Without that, it's nothing more than a magical "black box, of unknown accuracy, and does not deserve to be considered "scientific proof"

Even if it was a magical black box, it could be subject to scientific double-blind testing and you could measure the precision & accuracy of the magical black box.

You don't need to know how something works to know that it works (a lot of engineering is like that).

Example: you can measure the properties of gravity on earth and make very accurate predictions without knowing a single thing about what gravity is.

Re:That's how science works (1)

0123456 (636235) | more than 5 years ago | (#27800159)

Even if it was a magical black box, it could be subject to scientific double-blind testing and you could measure the precision & accuracy of the magical black box.

How do you measure the precision and accuracy of a piece of software without the code?

You could test it a million times and still have it produce complete garbage because of a rare, random buffer overflow, or because it's coded to claim everyone using it is guilty every time the year/month/day/hour is the same as the programmer's mother's telephone number.

Re:That's how science works (0)

Anonymous Coward | more than 5 years ago | (#27800789)

How do you measure the precision and accuracy of a piece of software without the code?

Like anything else - repeatedly measure the results with many types of inputs against known standards.

You could test it a million times and still have it produce complete garbage because of a rare, random buffer overflow, or because it's coded to claim everyone using it is guilty every time the year/month/day/hour is the same as the programmer's mother's telephone number.

You're right, you can't prove the software is error-free without the source code, you're only measuring its accuracy & precision, which is good enough in many cases.

Re:That's how science works (3, Informative)

denttford (579202) | more than 5 years ago | (#27799659)

What you seem to miss this is the application of science in law, not science. As a result, the commonly held method of scientific consensus or peer review is not the issue, but rather how American law deals with scientific evidence (and consensus/peer review): Daubert Standard [wikipedia.org] Frye Standard [wikipedia.org] Agree or disagree, there is plenty of literature on the subject; it's not like no one has thought about this.

Re:That's how science works (2, Funny)

sakdoctor (1087155) | more than 5 years ago | (#27799677)

I'd go a step further, and refuse any breathalyser that doesn't run linux.

Re:That's how science works (4, Informative)

Bruce Perens (3872) | more than 5 years ago | (#27799775)

I think you are allowed to refuse a breathalizer in some jurisdictions. If you do, they take you to get a blood draw immediately, and charge you based on the amount of alcohol measured in your blood. I don't know how they measure it.

Re:That's how science works (1)

vtcat (1281774) | more than 5 years ago | (#27799921)

Actually, in some states (Vermont for example) they charge you with refusal, which carries the same penalties as DWI.

Re:That's how science works (1)

Jane Q. Public (1010737) | more than 5 years ago | (#27799989)

Where I live, you can refuse either or both. Doing so will automatically get your license revoked for 1 year, under the principle of implied consent. (I.e., by getting a driver's license, you implicitly consent to allow the state to do this. This is a VERY questionable legal principle.)

The Founding Fathers considered the body of a citizen to be the most prized or sacred "property" of all types of property, with proportional rights to privacy. Collection of things like breath or bodily fluids, etc. was a matter of last resort, not allowable under most circumstances.

There is a very strong argument that "mandatory" blood testing is unconstitutional.

Re:That's how science works (1)

Zero__Kelvin (151819) | more than 5 years ago | (#27800099)

"There is a very strong argument that "mandatory" blood testing is unconstitutional."

Their (absurd) little argument to get around this is to claim that "driving is not a right, it is a privilege", at least in my home state. You can opt out, you just also opt out of the "privilege" of driving.

Re:That's how science works (4, Informative)

ari_j (90255) | more than 5 years ago | (#27800077)

In my state, and likely in many others, we have an "implied consent" law. What it says is that you implicitly consent, by signing your name to your driving license, to a breath alcohol test whenever you are stopped for a traffic violation. It also says that, if you revoke your implied consent by refusing a breath test, you automatically lose your license as an administrative matter between you and the department of transportation. Even if you are acquitted of the DUI, you have to take the DOT to court to get your license back, because you broke your agreement in getting it.

We also, as I've mentioned elsewhere in this thread, don't convict you of DUI based on a breath test. The breath test (an SD-2 Breathalyzer machine in most cases) just gives enough evidence to take you in and do a blood draw. This avoids the source code problem, among others, by using well-known, old-fashioned, and I believe published lab methods to measure your blood alcohol content.

Of course, the SD-2 can be used to convict you of being a minor in consumption of alcohol, which makes sense because, whereas the DUI law punishes 0.08% or higher and an inaccurate measurement by the SD-2 can make or break the case, an MIC punishes anything greater than 0%, so an inaccurate measurement only matters if it finds alcohol where there is none, which is vastly less probable than inaccurately measuring the amount of alcohol where there is some.

Re:That's how science works (1)

Seraphim_72 (622457) | more than 5 years ago | (#27800439)

It also says that, if you revoke your implied consent by refusing a breath test, you automatically lose your license as an administrative matter between you and the department of transportation. Even if you are acquitted of the DUI, you have to take the DOT to court to get your license back, because you broke your agreement in getting it.

Guilty until proven innocent.

It is the same (or worse) here in MN.

I will not believe that you can sign away your constitutional rights. They may try to push you to believe it, but no, you can't do it.

Re:That's how science works (1)

Dhalka226 (559740) | more than 5 years ago | (#27800783)

I will not believe that you can sign away your constitutional rights. They may try to push you to believe it, but no, you can't do it.

You can, depending on the jurisdiction, according to an Illinois judge.

It's generally assumed that you have a constitutional right to sue. We brought it up in a Constitutional law class many years ago in high school, here in Illinois, with regards to things like sports waivers agreeing not to sue your school. To get a legal opinion, our teacher asked a judge how it went. His response was that in Illinois, legal waivers are legal and enforceable, but that it will vary by state whether or not that is the case.

Your post was about Minnesota, but I know we have pretty much an identical implied consent law here in Illinois. Presumably both are jurisdictions which do not bar citizens from waiving legal rights. I think it's more an issue of contract law than anything else.

Should it be a federal issue? Should you be able to waive your rights? Is it different in civil versus criminal issues? I'm not sure. I'm just reporting the realities of the situation, at least as of... 10 years ago or so, according to a judge.

Re:That's how science works (1)

johnsonav (1098915) | more than 5 years ago | (#27800913)

I will not believe that you can sign away your constitutional rights.

Try telling a drill instructor that.

Re:That's how science works (1)

HappyEngineer (888000) | more than 5 years ago | (#27800897)

Doesn't mouthwash set off a breathalyser? (Scope contains alcohol). If so, the breathalyzer certainly isn't enough to prove that someone was drinking.

Re:That's how science works (1)

ari_j (90255) | more than 5 years ago | (#27801103)

The possibility for alcohol other than from your bloodstream to be measured by a breath test, throwing off the accuracy of the test, is one reason that, here, we only use it as evidence of probable cause to arrest and give you a blood test, not to convict you.

Re:That's how science works (0)

Anonymous Coward | more than 5 years ago | (#27800171)

In my country, Canada, it's a criminal offence to refuse a breathalyzer. Do so and the Police have reasonable grounds to take a sample of your blood, forcibly should you choose to resist, and use that against you to levy an additional charge of impaired driving should you be over the magic BAC % line.

You cannot beat the breathalyzer in Canada by civil disobedience, marvellous system eh?

Re:That's how science works (2, Interesting)

profplump (309017) | more than 5 years ago | (#27799699)

It's of know accuracy, and the accuracy is poor, so no one using it wants to talk about it. Even assuming the device functions exactly as designed it's not very good at determining your BAC because it can only measure the absolute count of methyl-group molecules in the sample chamber, not the amount of alcohol in your blood, or even the sort of things you'd need to make a reasonable estimate given the amount of alcohol in your exhaled breath (subject weight would be a good place to start).

Re:That's how science works (2, Interesting)

Anonymous Coward | more than 5 years ago | (#27800207)

it can only measure the absolute count of methyl-group molecules in the sample chamber

Well, it's alcohol molecules, not methyl groups (I presume you're not a chemist), but yes, that's true.

not the amount of alcohol in your blood, or even the sort of things you'd need to make a reasonable estimate given the amount of alcohol in your exhaled breath

The exhaled alcohol comes from the blood vessels in your lungs. The amount of alcohol in your exhaled breath strongly correlates to the alcohol concentration in your blood, with only very small variations with body size & lung capacity.

(subject weight would be a good place to start).

Subject weight is irrelevant to BAC. You might argue BAC isn't a good measure of impairment, but that's a different story.

Some breathalyzer models may have glitches & errors (which is the subject of this article), but the idea of using exhaled alcohol content to calculate BAC has been proven to be very accurate and has been tested to death.

Re:That's how science works (1)

rhizome (115711) | more than 5 years ago | (#27800319)

but the idea of using exhaled alcohol content to calculate BAC has been proven to be very accurate and has been tested to death.

Nice one AC, then why have I been told time and time again to refuse the Breathalyzer and go straight to the blood test?

Re:That's how science works (1, Informative)

Anonymous Coward | more than 5 years ago | (#27800565)

Nice one AC, then why have I been told time and time again to refuse the Breathalyzer and go straight to the blood test?

There is a difference between science and legal strategy. Also note that in some jurisdictions refusing the Breathalyzer carries the same penalty as DUI.

If you're pulled over for suspected DUI, a Breathalyzer measures BAC at that time. For a blood test, the cop on the street isn't equipped or trained for that. They are going to take you to the station, find the blood tech, gather the blood equipment, and take the blood sample. This is going to take time (and an emergency might popup in the meantime).

And during all that time, your BAC is declining due to your body metabolizing the alcohol. So the BAC measured by the blood test will usually be lower.

That's why.

Re:That's how science works (1)

Jane Q. Public (1010737) | more than 5 years ago | (#27800037)

It is not so much that it is "scientific" (though it is supposed to be). The main issue here is that it is physical evidence, that is (ideally) objective rather than subjective. In contrast to a street sobriety test, which is subjective non-physical evidence.

Re:That's how science works (1)

0123456 (636235) | more than 5 years ago | (#27800191)

The main issue here is that it is physical evidence, that is (ideally) objective rather than subjective.

Except your 'objective' evidence tells you very little about that person's driving ability, while your 'subjective' evidence tells you far more.

The problem is that if you were to start subjecting people to objective driving tests to determine whether they're safe to be on the road (measuring reaction times, etc), you lose the link to EVIL ALCOHOL and suddenly start taking away the licenses of people who are lousy drivers even when sober; which would be great for road safety, but not so good for anti-alcohol Nazis.

Re:That's how science works (1)

mvdwege (243851) | more than 5 years ago | (#27801151)

It tells you a lot. Driving impairment is correlated with BAC.

Mart

Re:That's how science works (1, Troll)

Swaffs (470184) | more than 5 years ago | (#27800403)

The point is that these instruments have been thoroughly tested and shown to be accurate. That's where the peer review lies. What difference does it make then in how it does it? I can't possibly believe that a source-code audit of one of these instruments will reveal a bona fide error. Its either a stalling tactic or they're looking to launch a Chewbacca defence by introducing confusing arguments about computer code.

Step in the right direction (1)

mcbutterbuns (1005301) | more than 5 years ago | (#27799877)

I'm glad that the courts allowed the defendant to view the source code (or at least get it analyzed). Software is not without its defects. It's my belief that any software that is used by the government to convict any of its citizens should be open for public review.

Now, the fact that he had to persuade the judge to allow the source code to be examined is upsetting but I think overall, its a positive move.

My father wrote the first Felony DWI laws in MN (3, Interesting)

cenc (1310167) | more than 5 years ago | (#27800607)

Thought I would share this, and before a bunch of you start posting BS about the claim of who wrote what, that is not the point. The point is the evolution of MN DWI law and technology.

My father as a prosecutor in Minneapolis in the 60's and 70's started prosecuting drunk drivers for things like felony manslaughter and such. At the time it was just misdemeanor, and often the police would just give someone a ride home. The State legislators and several lobby groups caught wind of it and asked him to write the laws. Those became the first felony laws for DWI in MN, and later where used as a model for other States around the country. Obviously they have been super modified since then, but the fundamental principle that DWI is something serious is still there.

My father went on in private practice as defense attorney in the 80's. Almost all of his acquittals on DWI came down to discrediting the probable cause (i.e. the officer) for the arrest in the first place. Typically the officer's judgment was always front and center (e.g. did he really see him cross the center line on an ice covered road). It got progressively harder as they started adding video cameras and other technology to get someone off on a DWI charge, as the officer's judgment became less important.

I suspect since my father's time, the only thing left to really attack is the validity of the technology itself that measures the crime.

Will the same thing also be for red light cameras (1)

Joe The Dragon (967727) | more than 5 years ago | (#27800617)

Will the same thing also be for red light cameras / speed cameras / video toll systems and more?

If I get red light ticket should I ask for the light timing tables? the camera timing tables? When the last time the light was tested as well testing the camera system? how it is tied into the light part of the main controller or is it a add on to the controller. Was the railroad system working right if it is a light with a railroad crossing part of it?

There have been cases for yellow times being to short for speed limit of the road and tickets have to be voided and some times the cameras triggering on yellow.

You may end up getting a red light ticket from a quick green to red at a light with a railroad crossing at it. Then if that where me I would want to have the logs and setting for all parts of the light like The pre-emptive / interconnected rail gates to light settings / The light timing settings / mini clear time / time be telling the camera system that the light is red after turning red / yellow time / camera system wait time and other times as well. Maybe even the code but like just the timings and how things are linked will do in that case.

I don't like the idea of a cheap hack like hooking to red light power bus other then a link to the cpu / data bus / network bus that interconnected rail / lights liked to other lights use.

Like this Idea (1)

mirdamad (1546073) | more than 5 years ago | (#27800727)

I actually really like the idea that the court system is allowing defendants to view the source code of the breathalyzer. In today's time drunk driving is a very serious offense that could affect the rest of a person's life if convicted. It would be wrong to convict a person of drunk driving if there was an error in the way the breathalyzer was functioning.
Load More Comments
Slashdot Login

Need an Account?

Forgot your password?
or Connect with...

Don't worry, we never post anything without your permission.

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>