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Closed Source -> Charges Dismissed?

Hemos posted more than 9 years ago | from the your-mileage-may-vary dept.

News 700

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

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radar guns (2, Interesting)

_Shorty-dammit (555739) | more than 9 years ago | (#12734301)

this is the first thing that popped into my head as I was reading through the post, and then it was mentioned near the end, hehe. Wonder if this might be successful with them speeding tickets, hehe.

Re:radar guns (3, Funny)

oniony (228405) | more than 9 years ago | (#12734316)

The first thing that popped into my head was Remmington Fuzzaway, but it's hardly relevent.

Re:radar guns (-1, Flamebait)

Anonymous Coward | more than 9 years ago | (#12734321)

Or you could just, y'know, not speed, hehe. Moron.

Re:radar guns (-1, Troll)

_Shorty-dammit (555739) | more than 9 years ago | (#12734355)

yeah, going 90km/h because my cruise control was set for the 90km/h zone that I just left, because it simply slipped my mind as I passed the 80km/h sign, which I could still see from the spot the cop pulled me over, sure makes me an idiotic maniac who's driving way too fast. Yep, getting a speeding ticket must mean I was going double the limit! Moron.

Re:radar guns (3, Insightful)

Ralph Yarro (704772) | more than 9 years ago | (#12734431)

yeah, going 90km/h because my cruise control was set for the 90km/h zone that I just left, because it simply slipped my mind as I passed the 80km/h sign, which I could still see from the spot the cop pulled me over, sure makes me an idiotic maniac who's driving way too fast.

If 'slips of the mind' prevent you from slowing down for whatever reason then you're not in control of the vehicle and you're not safe to be driving.

Re:radar guns (0)

Anonymous Coward | more than 9 years ago | (#12734441)

Beat me to it.

Re:radar guns (3, Insightful)

_Shorty-dammit (555739) | more than 9 years ago | (#12734469)

as I just said, I had only *just* went into an 80km/h zone from a 90km/h zone and could still plainly see the sign from where I was pulled over. FYI, the ticket was thrown out anyway because of the proximity to the sign :P Again, making out like I was crazy out of control when I was simply going 90km/h instead of 80km/h is pretty dumb. But go right ahead and exaggerate all you like.

Re:radar guns (1)

Ralph Yarro (704772) | more than 9 years ago | (#12734510)

I don't think I'm exagerating anything, and I don't think being "crazy" comes into it. If you can't reduce your speed by 10 km/h on seeing a sign then I think there's a problem you need to be aware of.

If you'd said "went from 90 to 45 and the sign was hidden in bushes so I didn't see it until I was right alongside it" then it'd sound more reasonable but the bit about the cruise control slipping your mind is quite disturbing.

Re:radar guns (1)

_Shorty-dammit (555739) | more than 9 years ago | (#12734530)

I didn't mention anything concerning the visibility of the sign when approaching it, you just assumed it was 5 times bigger than normal and had 74 flashing lights on it. That's neither here nor there anyways. 40-50% of cars on the road here are going 10km/h over the limit anyways, it's quite easy to not notice that the limit's just gone down 10km/h if you, for whatever reason, miss the sign. You're off base, give it up. I'm done anyways, waste of time.

Re:Slip of the mind.. (3, Interesting)

the_xaqster (877576) | more than 9 years ago | (#12734484)

Just a cautionary tale..

Years ago in my old home town, the 30 limit on a particular piece of road was moved 200m down the road, away from town. This was previously a 60 limit, a nice big wide road, with no houses or turn-offs on it. This was done at about lunchtime. That evening, the police stopped everyone speeding (doing the old 60 limit) down this section of road. All were asked if they had seen the new speedlimit signs. Most said no. All were let off the speeding charge with a warning. 2 weeks later, everybody who had said that they did not see the new signs was summoned to court for driving without due care and attention (if they did not see the new signs, they could not have been paying attention, right?). Bigger fine, more points!

Moral of this story? Keep a lookout at road signs, even if you have driven the same route for years!

Re:radar guns (-1, Flamebait)

Anonymous Coward | more than 9 years ago | (#12734433)

So, by your own admission, you don't pay enough attention to your surroundings when driving. Moron.

Re:radar guns (2, Interesting)

Zorilla (791636) | more than 9 years ago | (#12734465)

It's easy enough to let happen. You ever driven on highways in Oklahoma? Speed limit: 75 MPH, no wait, 45 MPH, now it's 65...not! God, the I-44 into Tulsa is obnoxious; there's three or four signs within 1 mile of each other just like that.

Re:radar guns (1, Insightful)

Anonymous Coward | more than 9 years ago | (#12734335)

First thing that popped into my head was to wonder how many people have been falsely convicted in the past.

If they won't release the workings to prove their device correctly tells that someone was DUI then it goes hand-in-hand that the evidence of previous DUIs is now very flimsy indeed.

Re:radar guns (1)

Nova1313 (630547) | more than 9 years ago | (#12734353)

it has varying success. They will release how it works but if you ask the last time it was calibrated if they havn't recently they can't charge you. There is a set standard for it. But this only works with radar. Laser works a bit different. Also never admit to doing anything wrong until they tell you what you did. If they just saw you flying and pull you over without clocking you and you say I was speeding they got you :p Although imo I agree with anonymous don't speed it's dumb. I realize it may get you there a bit faster and you think your safe thats fine it's the other idiots out there that you have to worry about. One moron weaving out of traffic colliding with you going fast causes a whole pileup on a highway. It's not something I'd want to be responsible for but to each his own.

Re:radar guns (2, Insightful)

dknj (441802) | more than 9 years ago | (#12734458)

okay, your post is wrong in more than one place. first of all, almost all radar guns are now calibrated before the cruiser leaves the precinct. tuning forks for radar guns are cheap and plentiful. maybe in a ghost town in the midwest your defense of uncalibrated equipment may fly.

next, i don't agree with the speed limits in most places. in a lot of places, most of the traffic flows at a higher speed anyway. if you actually do the speed limit, in some cases, you are putting yourself in more danger. there is no proof that going 10-15 over the speed limit increases my potential for getting into an accident. in fact, when speed limits are increased, accident rates tend to decline. morons weaving in and out of traffic aren't causing danger by speeding, they are causing danger by driving recklessly. i could drive the speed limit and weave and it'd just be as bad as if i was doing 10-15 over.

i hope everyone milks this for all its worth. traffic court operates very differently than regular courts, in which the police officer's word goes for almost anything. a lot of cops tend to give people tickets knowing they won't fight it, thus its revenue for the city and judges will turn a blind eye to it.

-dk

Re:radar guns (2, Interesting)

dknj (441802) | more than 9 years ago | (#12734467)

i would also like to state driving after drinking is stupid, and its a shame to see DUI offenders getting off on this. :(

-dk

OTOH (2, Insightful)

hummassa (157160) | more than 9 years ago | (#12734526)

If this avoids that one person unjustly accused of DUI goes to jail, it's a good thing, notwithstanding how many real DUI people get off with that.

Re:radar guns (1)

JaredOfEuropa (526365) | more than 9 years ago | (#12734457)

When I was in the States a few years ago, I heard a guy on the radio say that many people succesfully got their speeding ticket torn up, by asking for radar gun maintenance logs, calibration reports, and for the cop's radar gun training certification. Apparently the cops often didn't have all the paperwork in order, in which case the judge dismissed the speeding charges.

Voting machines? (5, Interesting)

Anonymous Brave Guy (457657) | more than 9 years ago | (#12734306)

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

META-MODERS, Please check out the parent (1, Offtopic)

WindBourne (631190) | more than 9 years ago | (#12734368)

This is the 2'nd post in this story. So it can not be redundant. But it is also on-topic.

Irish Voting Machine source (2, Interesting)

rsynnott (886713) | more than 9 years ago | (#12734391)

This was a problem here; the government tried to set up voting machines, with the contract being that once final delivery was complete they'd be given the source. They were used in some constiuencies in one election, then abandoned due to public unhappiness with them and a failure by the company to present the source. They're still lying round in a warehouse somewhere, and it looks like they're staying there for the time being.

first (0, Redundant)

alfiejohn (871931) | more than 9 years ago | (#12734307)

post

YOU FAIL IT! (1)

YOU FAIL IT! (624257) | more than 9 years ago | (#12734459)

Cases like this will not get YOU off charges of being a blatant FAILURE!

YOU FAIL IT!

Pulic Right to how it works (5, Interesting)

redstar427 (81679) | more than 9 years ago | (#12734311)

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

Re:Pulic Right to how it works (3, Interesting)

polysylabic psudonym (820466) | more than 9 years ago | (#12734357)

The public has the right to know if the device works, and how well. Without knowing how it works how can a citizen know if the charges against them are valid?

Re:Pulic Right to how it works (3, Insightful)

Hognoxious (631665) | more than 9 years ago | (#12734502)

If you can manage to type in the URL, try to google for "black box testing".

Re:Pulic Right to how it works (-1, Troll)

Anonymous Coward | more than 9 years ago | (#12734360)

is your B key defective?

Re:Pulic Right to how it works (2, Funny)

advocate_one (662832) | more than 9 years ago | (#12734394)

could have been worse... the "l" key instead...

Re:Pulic Right to how it works (1)

malikvlc (889549) | more than 9 years ago | (#12734411)

From the article: "Florida cannot contract away the statutory rights of its citizens," the judge wrote. I'm in agreement with the judge's sentiment here - making a buck should not come between a citizen and his/her rights to this sort of info. The techniques used by the breath-analysing equipment should be properly protected by copyright law - the manufacturer is thus protected from the threat of losing out to his competitors. Anything that so impacts a citizen should be open to public scrutiny.

Re:Pulic Right to how it works (0)

Anonymous Coward | more than 9 years ago | (#12734416)

It works like this:

If the cop REALLY wants to give you a ticket, he pushes a little button on the back of the box that makes the 'you're drunk' light come on when you blow in the tube.

So yes, it would be nice to know how they work, if only so that they could be peer reviewed.

easy solution (0, Offtopic)

passthecrackpipe (598773) | more than 9 years ago | (#12734312)

Don't drink and drive. Its stupid, immature and kills people. people that DUI are selfish dumbass bastards that should have their license irrevokably taken away at once.

Re:easy solution (-1, Redundant)

Anonymous Coward | more than 9 years ago | (#12734325)

..Somebody's always gotta make a speech.

Re:easy solution (1, Insightful)

Anonymous Coward | more than 9 years ago | (#12734328)

Indeed. That doesn't stop the "can you verify that this evidence is trustworthy" issue from being real.

Re:easy solution (4, Insightful)

_Shorty-dammit (555739) | more than 9 years ago | (#12734337)

Although DUI is mentioned, it's really got next to nothing to do with the story in question. The story's got to do with being convicted of something/anything because of evidence provided by an unknown method. Nobody's trying to defend drinking and driving, exactly. It's about whether or not the method of producing evidence is sound. Which I would say is exactly why the poster of the story mentions other things such as radar guns...

Re:easy solution (1)

physick (146658) | more than 9 years ago | (#12734386)

It's not really "evidence produced by an unknown method" (the company that makes the kit knows it) just one that is not revealed to the defendant.

But this is stupid: does fraud over a telephone line become acquit-able because the defendant doesn't know how a (software-controlled) telephone exchange works and the telco wants to keep its code secret?

Why does the defendant have a right to know how equipment used to obtain evidence works? As long as there exists an independent process that has evaluated the equipment's operation, and found it to be valid and not biassed in favour of false positives, say, this should be enough. I assume that states do actually check the equipment used for breath tests (do they?)

If this position is taken to an extreme, any proprietary information that a company is reluctant to reveal in a court case could be cited as a reason for acquital.

Re:easy solution (1)

_Shorty-dammit (555739) | more than 9 years ago | (#12734453)

thanks for ignoring "It's about whether or not the method of producing evidence is sound." and making it your argument against what I just said, heh.

Re:easy solution (1)

MathFox (686808) | more than 9 years ago | (#12734509)

In a DUI case the conviction depends on the numbers that the breathalyser produces. There could be some additional evidence like "the defendent could not walk straight", but essentially someone is convicted on the results of the breath analysis. If there are problems with the procedures and/or the equipment used, the evidence loses its value and in a DUI case someone could get acquitted. I'ld say that a defendent has a significant interest in knowing how the equipment works.

If the working of the equipment is not essential for a conviction, why bother with the details? Why analyse the full US phone system if the case hinges on witness declarations and a financial trace? Yes, the details of phone-tap equipment should be public to prevent tampering with the records, but not the irrelevant details of switching equipment.

what if you are falsely accused? (2, Insightful)

Harald Paulsen (621759) | more than 9 years ago | (#12734342)

If a machine says you are DUI but you are in fact not, wouldn't you like to find out how the machine works so any flaws could be found?

Re:easy solution (4, Interesting)

oniony (228405) | more than 9 years ago | (#12734344)

Hmm, you sound like a well-balanced, liberal kind of chap.

So the possibility that someone may have a genuine concern over the reliability and accuracy of a police enforcement device doesn't enter into your world-view of human rights then?

Best not put too much vinegar on your chips tonight.

Re:easy solution (1)

nsasch (827844) | more than 9 years ago | (#12734351)

And if it were open-source (the breathalizers), the DUI people would be handled properly. Now, the people are getting away with potentially killing people.

Re:easy solution (0)

Anonymous Coward | more than 9 years ago | (#12734504)

I do it all the time and I've never killed anyone.

WOOT! (-1, Troll)

TechnicGeek (889610) | more than 9 years ago | (#12734317)

No more having to slow down for cops.. Gimme your source or get outa my way.

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

isotpist (857411) | more than 9 years ago | (#12734326)

This should be obvious, if you want your evidence used in court you have got to supply ALL OF THE METHODS. If I were a cop or DA I'd be screaming at the salesmen who sold me these machines that will not hold up in court. Some competitor, who has machines that can stand up to scrutiny, ought to be making a killing on this.

Linus should go to a MADD meeting:-)

That's insane... (0)

Anonymous Coward | more than 9 years ago | (#12734329)

This means all the video recorders, audio devices, metal detectors, image analysers, need to be proved how they work in courtroom. What about biometrics? will it not be considered an evidence if courtroom does not understand how it works?

Do they need to know how TV works, if that is part of evidence? How antenna works? How magentism works?

And, is it applicable only to Electronic toys?

Re:That's insane... (1)

aslate (675607) | more than 9 years ago | (#12734427)

It's known how those work though, and in the case of things like TVs, they're even used daily by everyone, surely they're not "faked".

However the point is you can't find out how the breathalizer works, they won't let you.

Re:That's insane... (2, Interesting)

EastCoastSurfer (310758) | more than 9 years ago | (#12734483)

There is no need to dispute video/audio recorders as devices. Experts can agree on their function and how they work is clearly documented everywhere. Biometrics are already challenged everyday in court.(How accurate is this finger print match? How many other people could this partial match?)

The main part of this case is that the law says you are drunk with a particular BAC. It is the defendents right to see how law enforcement calculates that number and challenge the process with his own expert if he wants. A bloodtest for example, can be invalidated if they use alcohol to sterilize the area before drawing the blood. For all we know the software in the test in question contains a rounding error that could invalidate it's tests.

Re:That's insane... (1)

Lifewish (724999) | more than 9 years ago | (#12734524)

If, without an explanation, the gizmo would just be a magic box in which magic happens that declares people innocent or guilty, or if there's any possibility that it's not behaving how it's supposed to, then I'd say an analysis of said gizmo is justified. Railroading is bad for your nation's health.

Wouldn't it be nicer.... (0, Troll)

10Ghz (453478) | more than 9 years ago | (#12734332)

If people just carried the responsibility of their actions? Instead of whining about methods they use to test for DUI, maybe the person in question should just admit that "yes your honor! I'm a stupid asshole who thought that rules do not apple to me. Through my selfish activities I not only endangered my life, but life of other road-users". Maybe some day things will be like that. But not today.

Those people are quilty as hell. They just figured out a way to weasel out of their responsibilities. I for one hope that the next time they cross the street, they will get run over by a drunk-driver.

Re:Wouldn't it be nicer.... (4, Insightful)

tomstdenis (446163) | more than 9 years ago | (#12734358)

Perhaps that's true.

Oh look I've used my new guilt-o-meter and it says you committed 9 murders... Don't ask me how it works [and in turn determine if it actually works...] for that's proprietary.

Who knows, maybe he really wasn't drunk [or that drunk] and the device is buggy or mis-calibrated? That's why we have a DEFENSE in the first place.

If you're just going to trust whatever "magic happens here" box the police are using without actually investigating whether it works... then you might as well have summary convictions without appeal [or defense]. Then we could just walk up and down the street and write people up because our "guilt-o-meter" went off.

For every "asshole who got through a loophole" there are others who "got wrongly convicted" of an offense.

Maybe next time the cops purchase equipment they'll make sure they can be independently audited. It's not the defendents fault the cops are using [effective] defective equipment.

Tom

As a matter of fact, do not trust these things. (5, Interesting)

WindBourne (631190) | more than 9 years ago | (#12734393)

I used to work in a medical lab (first degree was in Microbio/Genetic Engineering). Many times, equipment is not calibrated correctly, or even the test underwent "sink testing". In addition, I have seen mistakes made on the code for doing calculations that resulted in wrong answers going on the door (and that was at a major lab). I am not wild about drunks being on the road, but I hate more seeing inocents being railroaded.

Re:As a matter of fact, do not trust these things. (2, Informative)

tomstdenis (446163) | more than 9 years ago | (#12734462)

The problem isn't the mistakes so much as the accountability.

If you add [say, cuz I'm not a biologist] sodium to a sample and you add 1mg too much, you don't specifically invalidate the results but you have to account for it in the final outcome...

The problem with this case is that the box that does the testing cannot be scrutinized which means there is no accountability.

And really, suppose the box was flawless, the company making them shouldn't hide the specs then. Hiding them just illuminates the potential rights violations they're unleashing on society.

Tom

Re:Wouldn't it be nicer.... (0)

Anonymous Coward | more than 9 years ago | (#12734405)

And how do you feel about innocent people losing their lives because some drunk asshole didn't go to jail when he should have?

As far as I'm concerned, there should be zero tolerance for people who drink and get behind the wheel. Zero. They have NO RIGHT to endanger other people on the road because of their need to get intoxicated.

Re:Wouldn't it be nicer.... (1)

tomstdenis (446163) | more than 9 years ago | (#12734434)

Great. The problem is your anger is misplaced.

First off, how do you know he was DUI? Because some blackbox that you can't question said so? NOT GOOD ENOUGH.

Second, you really ought to be angry at the state for buying equipment they can't prove works in court. Agreeing with justice when it favours the wicked isn't always a bad thing.

But of course you feel this way because you have yet to be on the wrong end of a miscariage of justice...

Tom

Re:Wouldn't it be nicer.... (0)

Anonymous Coward | more than 9 years ago | (#12734445)

And how do you feel about innocent people losing the rest of their lives because they were not some drunk asshole but went to jail when they shouldn't have?


As far as I'm concerned, there should be zero tolerance for people who are falsely accused, because they didn't drink and get behind the wheel. Zero. They have A TOTAL RIGHT to be free, since they do not endanger other people on the road because of they have no need to get intoxicated.

Re:Wouldn't it be nicer.... (1)

10Ghz (453478) | more than 9 years ago | (#12734461)

Oh look I've used my new guilt-o-meter and it says you committed 9 murders... Don't ask me how it works [and in turn determine if it actually works...] for that's proprietary.


They are guilty. You know it, and I know it. It seems that they are not disputing the fact that they had been drinking. They are focusing on the way they got caught.
Who knows, maybe he really wasn't drunk [or that drunk] and the device is buggy or mis-calibrated?


You don't have to be drunk in order to be a danger to other road-users. Again: they don't seem to be disputing the claim that they have been drinking, they are merely whining about the tool that was used to catch them.

Re:Wouldn't it be nicer.... (1)

tomstdenis (446163) | more than 9 years ago | (#12734472)

"They are guilty. You know it, and I know it. It seems that they are not disputing the fact that they had been drinking. They are focusing on the way they got caught."

You seem to have no clue what the legal process is. Your INNOCENT until ... PROVEN ... guilty. Without scrutinizing the box you can't prove guilt.

There is no more discussion worth having on this point.

And if you call upholding your rights "whining" then again, you're living in a bubble that has yet to be pierced...

Tom

Re:Wouldn't it be nicer.... (1)

MochaMan (30021) | more than 9 years ago | (#12734498)

Again: they don't seem to be disputing the claim that they have been drinking

Drinking and driving isn't a crime. Drinking until you're intoxicated, then driving is a crime. Don't know about US law, but I do know that in Canada, if you admit to the crime that's it, you proceed to sentencing no matter what you'd like to argue. In Canada you could also submit a "no contest" and accept the charges without necessarily admitting guilt, though you'll still be sentenced. They'd have to dispute the fact that they were driving drunk to result in a not guilty.

Re:Wouldn't it be nicer.... (0)

Anonymous Coward | more than 9 years ago | (#12734374)

"Those people are quilty as hell. They just figured out a way to weasel out of their responsibilities. I for one hope that the next time they cross the street, they will get run over by a drunk-driver."

Well h@ll what need do we have for a court system, we got 10Ghz!!! He knows with out hearing ANY evidence who is guilty and who isn't. Glad to see you know everything ...... /sigh

Re:Wouldn't it be nicer.... (1)

shotgunefx (239460) | more than 9 years ago | (#12734404)

I'll agree with you 100% that more people need to take responsibility for their actions and think before they act. In particular drunk drivers. Luckily, I've not lost anyone to this, but had some close calls. Like when my sister (and her 3 kids) were rear-ended while at a red light by a drunk driver doing 50mph. Almost got pegged quite a few times myself by some drunk yahoos.

Having said that, I don't see why such machines shouldn't stand up to scrutiny. Say you blew a .08 (drunk in MA), if the margin of error was 20%-30%, that's a fair gripe.

Do any companies actually release any type of information regarding their accuracy?

Secret courts (0)

Anonymous Coward | more than 9 years ago | (#12734413)

Convicted by a closed-source machine? this is the high-tech equivalent of a secret court.

As states [as states pass lower and lower blood-alcohol limits, more and more people who are marginally sober are getting snared. So it becomes more important for their right of defense to make sure the software is properly analyzing borderline values. But if you can't see the source, you cannot properly develop tests for edge conditions.

PROSECUTION: Your honor, the People have evidence that proves this driver was drunk. We just can't show it to you.

Re: bored local cops... (0)

Anonymous Coward | more than 9 years ago | (#12734503)

Lest you think this never happens. I know someone who does not drink (ever) that got stopped in the early AM on a Sunday and ended up with a DUI ticket. The cop was bored and just decided to make a stop and right the ticket. The whole thing was a mess. It went to trial and dozens of people showed up to declare under oath that the guy never drinks. It was a zoo. The judge 'reduced' the DUI to careless driving (wtf??) so he still ended up with four points and an insurance surcharge after paying legal fees. I don't know where you live, but bored rural cops in small town America can be a problem.

To answer your final line, I hope you get railroaded in court some day. I hope you lose your license for 18 months even though your were innocent. I hope it costs you thousands in legal fees and insurance surcharges. Hey, at least you will still be alive and have your health.

Re:Wouldn't it be nicer.... (0, Troll)

Foole (739032) | more than 9 years ago | (#12734528)

Those people are quilty as hell.

mmmm quilty.

Red light cameras (4, Interesting)

swb (14022) | more than 9 years ago | (#12734333)

I think where this is more interesting are things like "managed" red light cameras. In Minneapolis, we're getting them soon, and the system is actually run by a third party. They review photos and send the incriminating ones to the police, who then review the photos and decide whether to issue a moving violation.

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

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

Re:Red light cameras (0)

Anonymous Coward | more than 9 years ago | (#12734363)

They only snap photos when a violation is detected by sensors... so... no.

Re:Red light cameras (1)

cowwie (85496) | more than 9 years ago | (#12734470)

I don't even think they review them.... they just mail them out. I got one in Monroe, NC last November for running a redlight by 0.017 seconds. Cost me $50 that I had to mail to some company up in Ohio. You figure out exactly how long 0.017 seconds is and tell me how much I was over the white line by. The sensors say you're over the line, and you get mailed a bill. City cops probably never even known an incident took place... they just receive a check every quarter or so, I bet.

I'm pretty sure the rest would stay property of the scum^W reputable company that sells these revenue generating^W^W live-saving devices.

Some cities have traffic cameras outside of these things, and I would think THAT could be used as defense.

Re:Red light cameras (4, Informative)

tdemark (512406) | more than 9 years ago | (#12734471)

It sounds like you are under the impression that a red-light camera just takes a single shot of the car.

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

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

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

- Tony

Re:Red light cameras (1)

dknj (441802) | more than 9 years ago | (#12734507)

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

no way, have you seen them work? at least at night, all the ones i see take one picture and thats when you're in the middle of the intersection. now it may take it from multiple angles, but unless more than one car goes through the light, its only taking the one picture of you in the intersection.

and to the grandparent post, yes you have access to the pictures if you go to court. send the DA a certified letter asking for the evidence they will be using in court. if they don't give it to you, request an extension for your hearing and ask for the evidence during your trial. if they don't give it to you, appeal it and say you were denied due process.

-dk

blah blah blah i am not a lawyer, etc.

Re:Red light cameras (1)

Dachannien (617929) | more than 9 years ago | (#12734531)

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

{{Disclaimer:IANAL}}

Weak (1)

Jherico (39763) | more than 9 years ago | (#12734338)

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

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

And unless the company that makes the analyzer has some sort of vested interest in the conviction of X number of criminals, and therefore an incentive to produce skewed equipment, I don't see how the detailed functioning of the equipment is relevant to the cases.

Re:Weak (2, Insightful)

teh moges (875080) | more than 9 years ago | (#12734362)

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

Re:Weak (4, Insightful)

Lifewish (724999) | more than 9 years ago | (#12734385)

Should a rape suspect be able to get off because he questioned how the DNA scanner works, and the court can't provide an answer?

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

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

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

Re:Weak (1)

polysylabic psudonym (820466) | more than 9 years ago | (#12734395)

The company doesn't need to have an interest, the defendant needs also to protect himself from error or idiocy.

If a company refuses to admit how it is that their machine tests for alcohol, then perhaps it's because it doesn't work correctly, perhaps it gives positive results for the presence of compounds other than alcohol.

Re:Weak (1)

capt.Hij (318203) | more than 9 years ago | (#12734396)

If a DNA scanner relies on trade secrets on how it works then that is a serious problem. On the other hand, if it relies on patents and methods that have passed through some sort of peer review then there is no problem. The issue here is secrecy. If a person is charged with a crime and is presumed to be innocent then the proof that a crime was committed relies on how that proof was obtained and not a government or commercial agency who says "trust me."

This is an argument for a strong patent system that actually works. That is people in the patent office perform a real peer review on specific applications of technology.

Re:Weak (4, Insightful)

Anonymous Brave Guy (457657) | more than 9 years ago | (#12734399)

This seems like a really weak defense and I'd be interested to know what the justifications the judges are using to make such a ruling.

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

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

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

which is worse, the drunks or the judges? (0, Troll)

Shivetya (243324) | more than 9 years ago | (#12734410)

This sounds more like a worst case scenario of judges legislating from the bench. Worse we have a group of them obviously conspiring to do so.

How much of the public are the judges willing to put at risk to stroke their own egos? I would love to see these judges SUED and jailed if one of the people whose case they dismiss subsequently kill someone on their next DUI.

If they have a problem with the manufacturer then take it up with the state. If the state does not have a requirement of disclosure then by what basis do the judges operate?

How can they not apply this to speeding tickets, parking meters, or are items of revenue enhancement strictly excluded from this test?

Re:which is worse, the drunks or the judges? (1)

Crazy Man on Fire (153457) | more than 9 years ago | (#12734505)

This sounds more like a worst case scenario of judges legislating from the bench.
You're kidding, right? Why is it that when judges upset the status quo to do what's right then all the right-wing wackos scream that they're "legislating from the bench"?!

Can't you see that citizens' rights are at stake here? Suppose that the breathalyzer manufacturer built a special "feature" into the scanner that allowed the officer using it to cause a "false positive" scan? Suppose the margin of error was +/- 10% and the person being charged with a DUI blew a .08% (the legal limit in my state). Suppose this person was you or someone you care about!

Remember, when judges de-segregated the schools, they were "legislating from the bench", too...

Re:Weak (1)

lampajoo (841845) | more than 9 years ago | (#12734480)

stfu, you queer. whose side are you on?

Re:Weak (0)

notbob (73229) | more than 9 years ago | (#12734486)

Have you ever been to court on charges for something?

With as stacked against you as possible they are, I think we need to defend our access to any and all information to defend yourself.

Say for example you find a bug in the system that truly caused a false reading you would need that key information to be able to brought about in court to defend yourself.

Protect citizens rights at all costs. ...besides most DUI offenders are repeat offenders they'll get theirs anyways.

Before you go drinking and driving.. (1)

SirFozzie (442268) | more than 9 years ago | (#12734340)

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

arises? (0)

Anonymous Coward | more than 9 years ago | (#12734343)

I don't know if I'm a grammar nazi or spelling nazi (raises), but I do know you're wrong!

Interesting question (1)

TERdON (862570) | more than 9 years ago | (#12734348)

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

There should be a possibility to check evidence in court (conspiracy theories go here - red light camera manufacturers doing image processing and shooting your car every time it passes based on the plates), even where containing theories of possible in the technology used for evidence gathering, yet still there is a problem with any speeddriving idiot claiming "we don't know how the radar gun work - your evidence doesn't count". Certainly, most of the radar guns are working totally correctly...

Re:Interesting question (1)

lampajoo (841845) | more than 9 years ago | (#12734496)

"Certainly, most of the radar guns are working totally correctly..."

On what basis are you making the claim that most of the radar guns are working totally correctly?

Re:Interesting question (1)

TERdON (862570) | more than 9 years ago | (#12734532)

On none at all actually, I just suppose they are working properly. And also, I think there would be a pretty big number of "speeders" wanting attention of the public, if most of the radar guns were making really faulty measurements.

Opportunity Knocks (2, Funny)

VernonNemitz (581327) | more than 9 years ago | (#12734371)

1. Create Open Source breathalyzers, radar guns, etc. 2. Advertise to all defendants everywhere the closed-source loophole in the prosecutions' cases. 3. Sell your versions of that equipment. 4. PROFIT!

Can't sue me for my warez (0)

Anonymous Coward | more than 9 years ago | (#12734376)

cos they are closed source!!11

I would. (0)

Anonymous Coward | more than 9 years ago | (#12734378)

I would use this as a defense. Not exclusively, of course. But I would try to argue that if it's not verifiable, it's not reliable.

Okay... (3, Insightful)

Vo0k (760020) | more than 9 years ago | (#12734383)

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

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

"Original Story" (3, Informative)

the_pooh_experience (596177) | more than 9 years ago | (#12734390)

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

-----

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CMI has changed the unit's software and some parts during the years, so it's no longer the same machine the FDLE approved in 1993, according to Stuart Hyman, an Orlando lawyer who makes his living defending DUI defendants.

"They've put different parts and pieces in it," he said.

Those changes were substantial, he said. The machine may no longer be as accurate as it was, he said.

Prosecutors do win DUI cases without the breath test. Officers can testify about how the defendant was driving, what he told them, how he performed in field sobriety tests, such as trying to balance on one leg.

Feliciani disagreed, saying breath tests are the surest way to convince jurors.

Attacks on the Intoxilyzer are not new. Through much of 2002, 2003 and early 2004, hundreds of breath-test results were thrown out because the state refused to turn over trade secrets it did possess -- the machine's operating manual.

Then, as now, the state claimed the information was the private property of the manufacturer.

That battle ended last year when the 5th District Court of Appeal ruled the state had to turn them over.

That is where this latest skirmish may land, as well, Feliciani said. The issue is on appeal in the 18th Judicial Circuit, one step below the 5th DCA.

Rene Stutzman can be reached at rstutzman@orlandosentinel.com or 407-772-8038.

-----

Can I be the first to say that the product name "Intoxilyzer 5000" [alcoholtest.com] is really lame? However it sort of sounds like a fruity drink. And the emphasis that I added should be taken with a grain of salt, considering the source...

Re:"Original Story" (1)

Anonymous Brave Guy (457657) | more than 9 years ago | (#12734490)

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

It's tough to say whether that's entirely fair; on the one hand, source code can be checked, but on the other, how do you know that's what was actually running on the machine at the time anyway? What really matters is that the algorithm/process is reliable, rather than the actual source code. If that algorithm/process has been properly reviewed and approved, whinging about lack of source code sounds more likely to let people off on a technicality than something actually in the interests of justice. There comes a point where you have to trust to review and approval processes, because you can't individually review every line of code in detail in every case.

However, one way or another, those submitting the technical evidence should surely be required to provide detailed information about how it works for a defence expert witnesses to review, or accept that their technical evidence may not carry full weight with a judge or jury otherwise. If, as was suggested in this article, the method had actually been modified since the original approval was granted, then that approval should carry no weight here, and if that undermines the technical evidence as well and nothing else (e.g., the source code) is presented to support the validity of the changes, then that evidence carries no real weight either.

Not wnating to set a precedent. (3, Informative)

tres3 (594716) | more than 9 years ago | (#12734407)

It is my opinion that the legal system doesn't want to set a precedent by admitting that Breathalyzers don't actaully measure ethyl alcohol. They measure chemicals that contain methyl groups and ethanol is one of them. There are many others. See: 1 [maine.edu] 2 [duiblog.com] 3 [california...riving.com] 4 [dui.com] 5 [potsdam.edu]

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

Anonymous Coward | more than 9 years ago | (#12734497)

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

Blatantly (1)

TheKnave (879982) | more than 9 years ago | (#12734415)

There needs to be a central repository of scientific methods (the patent office or something similar) and a body which guarantees that such devices follow the specified method sufficiently for use in law enforcement.

That way you have you answer to 'How does it work' AND you have your closed source option.

Re:Blatantly (1)

lampajoo (841845) | more than 9 years ago | (#12734513)

That's like asking the fox to guard the hen house.

Not so hard (2, Insightful)

the bluebrain (443451) | more than 9 years ago | (#12734418)

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

The fact that neither can be fulfilled at the moment, and that it was (well, predictably) a defendent who had to point the weakness in the current state of affairs is neither here nor there: If "we the people" want to put someone in the slammer, we have to be able to tell them why we are doing so, and if we set up things so badly that we can't, they should indeed go free.

Who's to blame? Probably some mid-level bureaucop who rubbed his/her hands in glee when the saleperson showed them the single button and all the blinkenlights, and signed the purchase order for three dozen units without booting his/her brain.
Sic transit gloria mundi. Not that it can't be fixed, tho.

If this Software Vendor ... (1)

torpor (458) | more than 9 years ago | (#12734420)

.. is letting people off the hook, then its failing to perform the job it was hired to do: provide evidence in prosecuting law-breakers.

There should be a deep investigation into this issue. After all, the public trust has been violated. Criminals are going free because of business.

It's outrageous, egregious...preposterous! (1)

WormholeFiend (674934) | more than 9 years ago | (#12734423)

I would say the public is entitled to at least have access to the user's, maintenance and other available technical manual(s).

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

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

It's not much, but it could make the difference between no fine, or a smaller and a bigger fine.

I finally understand it! (0, Flamebait)

jurt1235 (834677) | more than 9 years ago | (#12734430)

Why they do not use electronic voting machines in Florida. The judge would have said in that case too: Cannot verify the results, I will not accept this as evidence that GWB has won these elections.

Open testing = open platform? (1)

tizzyD (577098) | more than 9 years ago | (#12734464)

Would the government, especially this one which is even loathe to open their fly to take a piss, be likely to just create an open test? Then, regardless of what performs and how it's designed, as long as it demonstrates it means the Government Authorization Test, it's good in Uncle Sam's eyes. Even more diabolical would be the idea that by opening the code to such devices, there are DRM issues associated. Could they be sneaky enough to link the DMCA into this decision, issuing a counter-claim against the judges for issuing their ruling? Devious minds think alike...

Police taser video (1)

jamie (78724) | more than 9 years ago | (#12734512)

Use of police taser. [palmbeachpost.com]

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

Linked from Hullabaloo. [blogspot.com]

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

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

But Taser did not have those autopsy reports and didn't start collecting them until April [2004]. Using computer searches, autopsy reports, police reports, media reports and Taser's own records, The Republic has identified 88 deaths after police Taser strikes in the United States and Canada since 1999.

Experienced something similar with UK speed camera (4, Interesting)

pandrijeczko (588093) | more than 9 years ago | (#12734520)

My other half was captured by a speed camera allegedly doing 38mph in a 30mph zone. She's never been sure if she was actually speeding but, when she was sent the photograph taken by the camera, the time the photo was supposedly taken was half-an-hour too early. (Fortunately, she was coming home from a doctor's appointment at the time so knew almost the exact time she passed the camera.)

When we raised the question of the calibration of the camera, we were fobbed off with a letter from the police about all cameras being synched to an "atomic clock" and there being no possibility of an inaccuracy.

I then asked for technical information regarding the synching method used but was refused.

I then wrote a final letter stating that we would fight this in a courtroom and would expect proof that the camera was accurate to be demonstrated in front of the judge. I also demanded that prior to the court case, I would require technical information on camera timings so as to prepare a defence case.

The upshot of this was that the case was ultimately dropped.

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