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DUI Defendant Wins Source Code to Breathalyzer

Zonk posted more than 6 years ago | from the one-way-to-fight-the-man dept.

Software 638

MyrddinBach writes "CNet's Police Blotter column looks into a Minnesota drunk driving defendant case with a twist. The defendant says he needs the source code to the Intoxilyzer 5000EN to fight the charges in court. Apparently the company has agreed to turn over the code to the defense. 'A judge granted the defendant's request, but Michael Campion, Minnesota's commissioner in charge of public safety, opposed it. Minnesota quickly asked an appeals court to intervene, which it declined to do. Then the state appealed a second time. What became central to the dispute was whether the source code was owned by the state or CMI, the maker of the Intoxilyzer.'"

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638 comments

What I would do first (4, Funny)

Kohath (38547) | more than 6 years ago | (#20175139)

grep it for "Boris Yeltsin"

What about (-1, Troll)

Anonymous Coward | more than 6 years ago | (#20175151)

the fact that he's a piece of shit for driving drunk in the first place?

Re:What about (4, Funny)

Copperhead (187748) | more than 6 years ago | (#20175223)

This post is going to go in the dictionary under "begging the question".

Re:What about (5, Insightful)

sokkalf (542999) | more than 6 years ago | (#20175237)

He's innocent until proven guilty.

Re:What about (0, Flamebait)

HomelessInLaJolla (1026842) | more than 6 years ago | (#20175373)

"DNF" coupled with officer's testimony of "strong odor" is enough for a guilty verdict unless your family coughs up cash for very expensive legal counsel.

Re:What about (2, Insightful)

thc69 (98798) | more than 6 years ago | (#20175257)

TFA doesn't say what level he tested at, but it's certainly possible that he was tested above the legal limit while well within the ability to drive decently. He may be a piece of shit for driving drunk, or he may be an unfortunate victim of the jerks who think that lowering the legal limit to an indecent level will make the roads safer.

Re:What about (4, Insightful)

jacobcaz (91509) | more than 6 years ago | (#20175317)

TFA doesn't say what level he tested at, but it's certainly possible that he was tested above the legal limit while well within the ability to drive decently. He may be a piece of shit for driving drunk, or he may be an unfortunate victim of the jerks who think that lowering the legal limit to an indecent level will make the roads safer.
I don't really agree with the whole "he was tested above the legal limit while well within the ability to drive decently." arguement. I won't dispute that some people can hold their liquor better than others (e.g. have a higher tolerance), but the simple facts are: alcohol impairs your ability to respond. Also, alcohol impairs cognitive functioning even when motor functioning appears normal.

I am all for lowering the limit even below 0.08, not because I want more "gubermint" in by business, but because it's just safer for everyone.

Now bring on all the people who say, "but..but...but, it's the same thing with cell phones."

Yep - ban them too! :-)

Re:What about (4, Insightful)

Bluesman (104513) | more than 6 years ago | (#20175555)

"I am all for lowering the limit even below 0.08, not because I want more "gubermint" in by business, but because it's just safer for everyone."

It would be "just safer for everyone" to require that you don't drive for a week after drinking alcohol, and to wear a helmet whenever you do, and yet it's not a law.

Doing things in the name of safety while ignoring the cost is a bad way to do anything.

Re:What about (1)

spun (1352) | more than 6 years ago | (#20175665)

What's the cost in this case? Someone is going to have to take a cab home and pick up their car the next day. Boo fucking hoo.

Re:What about (5, Insightful)

Anonymous Coward | more than 6 years ago | (#20175593)

LOL, a very US-centric, M.A.D.D brainwashed view... (wash "Won't someone think of the CHILDREN!!" rinse repeat)

Why don't we just bring back prohibition while we're at it?

Having spent time in North Italy (Lots of mountain roads), I can say that I saw many people out to lunch split a bottle of wine between 2 or 3 people, and drive back to work. In all my time there, I didn't see one wreck. Not one.

I come back stateside and in one day see 10 obviously fatal wrecks on one road. Flat dry pavement.

Speed doesn't kill. Some alcohol doesn't kill. An extremely lax drivers education/training/licensing policy coupled with general distraction and self-ceneredness (I'm the king of the road get the hell out of my way so I can get my snot-nosed brats to soccer practice) absolutely does. Speed and alcohol can make that worse, but they are far far from the boogieman many idiots in the US make them out to be.

I say fix the real problems, and roll back the levels to where they were in the 70s, enforce those levels effectively, and shut the hell up and stop harassing relatively innocent tax payers.

My $0.02US.

Re:What about (0)

Anonymous Coward | more than 6 years ago | (#20175949)

It helps that the US has basically made having a valid driver's license mandatory.

Want to buy alcohol?
Buy cigarettes?
Fly on a plane?
Rent a car?
Vote?

You need a license. Actually, you need a state-issued ID, but that really adds "or a passport" to my previous statement. And passports cost a lot of money.

So since licenses are practically mandatory, the barriers to getting and keeping one are stupidly low.

Re:What about (4, Interesting)

digerata (516939) | more than 6 years ago | (#20175839)

The problem with your argument is this.

The people who are killing or injuring or severely maiming others are not people who had two beers and hopped in a car to go home. It's being done by the people that HAVE a PROBLEM and are downing a case of beer and covering one eye to make it to the next bar.

Lowering the legal limit from .1 to .08 and further down to .06 or whatever DOES NOT SOLVE ANY PROBLEM. The difference in human beings with a BAC of .06 and .08 is impossible to distinguish and measure. All it does is increase government revenue and keep good people down.

This country needs to come to grips with is that Americans DRINK. Drinking is a part of our society and is not going away. The problem that everyone keeps overlooking is that there is no way to evaluate how intoxicated you are and if you are beyond the legal limit, there IS NO WAY TO GET HOME!

I tell you what, if I KNEW that I was at .09 right before I hopped into my car, I wouldn't drive. I would wait 15 minutes. But how the hell do I know that because there are no consumer devices that accurately tell me and there is nothing at drinking establishments that tell me. I went to a bar in Windsor, Ontario and was blown away by the greatest invention. They had a freakin 25 cent breathalyzer that told you exactly how drunk you were! That's BRILLIANT!

Furthermore, if you live in a city with public transportation, you are fine. But what happens if you live in an urban area, where there is no reliable or cost effective transportation. I invite anyone to come to the Detroit Metro area and try and find a cab ride home. You are going to pay 30 - 50 dollars. Forget about the bus. Forget about the train.

Sure, if you live in downtown New York, this argument doesn't hold water. But how many drunk driving accidents do you have in New York? I wonder how much of that is due to the subway system? Hmm....

So what are doing with all the extra cash we get from persecuting people who had one beer too many? Certainly not building up our infrastructure to SOLVE THE PROBLEM.

Driving is a privilege (1, Insightful)

spun (1352) | more than 6 years ago | (#20175715)

The lowest legal limit I know of is .08. That's enough to impair. Honestly, I think it should be, one strike and lose your license for a year. More than once and you never drive again. Drunk driving is one of the most dangerously irresponsible things anyone can do. I can't understand why anyone would try to defend it.

Re:What about (1)

icepick72 (834363) | more than 6 years ago | (#20175863)

I judge by your username that other substances may be in use while driving, and other things are being done .... Well, at least you're going out in style when that mother of all car accidents occurs.

Re:What about (0)

Anonymous Coward | more than 6 years ago | (#20175319)

I was about to say the same thing, but then when I saw you were modded insightful, it sort of pissed me off.

If the conviction comes down to the breathalyzer being slightly off, I think you are a boob for jumping to conclusions. If he was stopped in a random traffic stop/check point, and the breathalyzer was wrong, then he may be a perfectly stand up guy, and you just slandered him. you don't know, and that is what courts are for.

If he was pulled over because it was obvious he was intoxicated, well then... Who th F cares!!! You only need the officers testimony technically (and a willing jury). The breathalyzer is just icing on the cake. (Check you local laws, but in my state over the legal limit is an automatic charge, but even under the limit, if you can't control your vehicle is a violation of the law)

Re:What about (3, Insightful)

xero314 (722674) | more than 6 years ago | (#20175677)

If he was stopped in a random traffic stop/check point
Traffic stops are never random, ever. I'd even bet that beyond 1 or 2 rare cases in history have the even been semi-random (cops don't flip coins to determine who they pull over). It is possible that this was at a designated check point, in which case it is also rare that everyone at a check point receives a breathalyzer test, and even rarer are the test administered randomly. The is an interview process that always takes place before a breathalyzer test. These interviews are to judge a persons current cognitive state. Once the officer determines that your state is impaired do they follow up with a breathalyzer, which is do to know what to charge you with, not if to charge you.

From reading the article you can see that getting the source code is not about proving it accurate or not, but that cases have been thrown out previously because the company refused to release the source code. In this case the defendant is probably very unhappy that the source code was released. This is a pretty clear case of a defense backfiring. Hopefully he will find any bugs in the software so they can be corrected, but that probably won't stop him from being convicted.

Re:What about (1)

BUL2294 (1081735) | more than 6 years ago | (#20176019)

Yeah, but if that source code were to get "leaked" then somebody would probably truly pick it apart...

state==public domain? (2, Interesting)

networkBoy (774728) | more than 6 years ago | (#20175159)

If it's owned by the state isn't it public domain?
Thus if the state's call to block it was predicated on their claim to ownership, it would fall through.
-nB

Re:state==public domain? (2, Funny)

Icarus1919 (802533) | more than 6 years ago | (#20175383)

Hey, you wanna take a stroll with me on the lawn of the White House? It's really pretty this time of year. It's public property, ya know.

Re:state==public domain? (5, Interesting)

cayenne8 (626475) | more than 6 years ago | (#20175599)

Well, you're supposed to be able to confront the evidence and witness against you. Since a machine is being used as evidence against you...you should be able to study what makes it tick for your defense.

I've said it before tho...and this does differ in many states, but, if I got pulled over, and knew I'd blow more than the ridiculously low 0.08, I'd do what a lawyer told me. Not say a word, not take any field tests, just hold my hands out for the cuffs and refuse to take any tests. All those field tests do is allow them to collect evidence on you on camera. With no evidence...they can't prove you were intoxicated. In many places, yes, you'll lose your license for a year...you'll probably get hit with wreckless driving....but, you won't get a DWI on your record which can nowdays hurt you on job applications, credit...and certainly your insurance.

If you're drunk...you are going to jail...but, you don't need to help them collect evidence against you.

Re:state==public domain? (1)

RockModeNick (617483) | more than 6 years ago | (#20175661)

It's the truth. 0.08 is below any significant level of impairment under normal driving conditions, and police fail a consistent 50-75% of people on sobriety tests when 100% are sober.

Re:state==public domain? (1)

stevey (64018) | more than 6 years ago | (#20175805)

I don't drive and I'm not an American, so I may be woefully ignorant.

I always had the impression if you failed one of those roadside tests they took you back to the station, then took a blood sample for confirmation of the result. Is that not the case?

If you refused to take a test at the roadside wouldn't they take you away to the station, arrest you for "Suspicion of drunk-driving", then forcibly take a blood sample?

Re:state==public domain? (0)

Anonymous Coward | more than 6 years ago | (#20175851)

forcibly take a blood sample? where the fuck do you live?

The USA? (0)

Anonymous Coward | more than 6 years ago | (#20176025)

I had to attend driving school thanks to a speeding ticket (they forgive your first ticket if you take a class, making the class a really good idea) and they told us that they could get a subpoena for your blood.

In other words, yes, they can forcibly take a blood sample from you although they have to have a judge approve it.

Re:state==public domain? (1)

hax0r_this (1073148) | more than 6 years ago | (#20176003)

America has some problems, but I don' think we're to the point yet where they can arrest you on "suspicion of drunk driving" then use that to "forcibly take a blood sample". Of course maybe we are, I've never consumed a drop of alcohol in my life so I don't follow such things too closely y'know?

Re:state==public domain? (1)

megaditto (982598) | more than 6 years ago | (#20175609)

Nuclear warhead blueprints are owned by the State too...

1) Get in touch with Bin Laden
2) ...
3) Prophet!

Sigh (1, Insightful)

WeAzElMaN (667859) | more than 6 years ago | (#20175161)

What a bitch. Just take the punishment - no matter how sober you think you are, those things are damn near never wrong. If it's above .08, just pony up for the fines already...

Re:Sigh (4, Insightful)

vux984 (928602) | more than 6 years ago | (#20175231)

On the other hand, what if he finds a bug? I'd let this guy off the hook in exchange for improving the software so that it works better in the future. And if he can't find a bug, he still gets convicted.

Really this seems like a win-win for everyone involved.

Re:Sigh (5, Insightful)

SeanTobin (138474) | more than 6 years ago | (#20175303)

On the other hand, what if he finds a bug?
That's exactly what the state is worried about. If he does find a bug and is acquitted, suddenly every DUI conviction using data provided this device has to be thrown out. The state doesn't really care about releasing the source code, it cares about maintaining the convictions.

Re:Sigh (2, Insightful)

MightyMartian (840721) | more than 6 years ago | (#20175495)

Which is precisely why the diminution of old-fashioned sobriety tests in favor of technology is a bad thing. In the olden days, if you stank of liquor and were driving erratically, that was often enough to get your ass kicked. The cops, however, are an incredibly lazy bunch who just want a magic blackbox that's absolutely right. Now they're being faced with the dangers of that argument. If this breathalyzer is hokey, then it's not the defendant's fault, but the fault of the manufacturer and a lazy-ass government and law enforcement types.

What is so bad about alcohol testers? (0)

Iloinen Lohikrme (880747) | more than 6 years ago | (#20175927)

I just can't understand what is so bad about alcohol testers and why so called old fashioned sobriety test would be better than that. At least here in Finland, and other parts of Europe too that I know, police use only alcohol testers and they are widely accepted and seen as the best way to get the job done. To me sobriety test seems just so very random way to measure is the driver under too much alcohol or not, I would image that with that kind of test a cop can use his/her judgment and either let the driver of the hook or book him, at least in the borderline cases. With testers its easy, you just blow and the tester will tell what your score is, and the score is what it is. And if for some instance you don't want to blow or you think that there is some wrong with the device or there are some other things to be noted, you can always demand to be taken to a local hospital for a blood test.

Re:Sigh (5, Insightful)

vux984 (928602) | more than 6 years ago | (#20175675)

That's exactly what the state is worried about. If he does find a bug and is acquitted, suddenly every DUI conviction using data provided this device has to be thrown out. The state doesn't really care about releasing the source code, it cares about maintaining the convictions.

If they were convicted by evidence from defective equipment, it SHOULD be thrown out. That is a founding principle of our system of justice. We as a society prefer that the guilty walk rather than imprison the innocent; or at least we as a society used to think that... and I still do... but I don't think I speak for society anymore. :(

That said, even I don't think a found bug should be an automatic acquittal. After all it could be reading lower than it should have been! But yeah, if they find a bug that caused it to read double the actual amount under various circumstances then I would have no qualms about throwing out any DUI convictions it caused.

Re:Sigh (1)

kaiser423 (828989) | more than 6 years ago | (#20175671)

There are many reasons why breathalizers can be inaccurate. They rely on a large set of assumptions -- things like your diet, and your mood can cause errors.

Breathalizers should never have been used as a tool to convict. There's some new technology that uses a subcutaneous laser to actually measure the concentration in your blood -- that would give you a true BAC without having to stack up a number of assumptions like the breathalizer has to.

Re:Sigh (1)

Phisbut (761268) | more than 6 years ago | (#20175893)

Breathalizers should never have been used as a tool to convict. There's some new technology that uses a subcutaneous laser to actually measure the concentration in your blood -- that would give you a true BAC without having to stack up a number of assumptions like the breathalizer has to.

I dunno if that's true in the US, but up here in Canada, breathalizers are never used to convict. If you blow in the breathalizer and the red light flashes, it simply gives the officer the probable cause he needs to arrest you, take you to the police station, and take a sample of blood. The blood test is what is used to convict you. No hidden source code in that (unless you want the source code to your blood, which is basically your DNA, then you need to ask God to document the API...)

Re:Sigh (1)

91degrees (207121) | more than 6 years ago | (#20175365)

He might be innocent. If he is then he shouldn't have to pay a fine.

Actually I think this is highly unlikely but it's the way the legal system works. We have to give him every opportunity to challenge the prosecution's evidence.

DWI Kills (0)

Anonymous Coward | more than 6 years ago | (#20175391)

What a bitch. Just take the punishment - no matter how sober you think you are, those things are damn near never wrong. If it's above .08, just pony up for the fines already...

I agree. He is hoping they don't want to give up the code. Give it to him. After a week, give him the maximum sentence. Drunks kill people. And I would bet he was drunk.

Re:Sigh (1)

Nephilium (684559) | more than 6 years ago | (#20175489)

Actually... the breathalyzer can very easily be wrong... it takes an extremely small sample size, then extrapolates up from that. Look into some of the known science of it... if a speck of spittle gets into the device, it will push your measured BAC up much higher then it actually is. The science behind it is already questionable, and the courts have not allowed a case on the scientific basis of the device.

Nephilium

Re:Sigh (0)

Anonymous Coward | more than 6 years ago | (#20175563)

Research indicates that breath tests can vary at least 15%. Not to mention a whole host of other things that can potentially go wrong with a Breathalyzer. Mod parent flamebait.

http://en.wikipedia.org/wiki/Breathalyzer#Common_s ources_of_error/ [wikipedia.org]

Re:Sigh (1)

nystul555 (579614) | more than 6 years ago | (#20175601)

Actually the accuracy of breathalyzers is a topic of some debate. At least 23% of all individuals tested will have a BAC reading higher than their actual BAC. [potsdam.edu] According to wikipedia [wikipedia.org] many factors including temperature, the persons breathing pattern, and if the device has been recently recalibrated or not can affect the results - so much so that some states don't allow breathalyzer results in court (they require blood tests)

Re:Sigh (2, Interesting)

Alchemar (720449) | more than 6 years ago | (#20175607)

Most states have a law that states a BAC. A breathalyzer estimates your BAC based on the light absorbtion to determine the amount of alchol in your breath. The amount of alchol in your breath is an estimate of your BAC based on an everage person's metabolism. The source could is the only way to tell how they correlate the measured amount of light absorbtion to the estimated BAC of that specific person. Breathalyzers were intended to be a quick way of determining if someone was suspected of being intoxicated. Think about the revenue that is gained for the departments that have made the decision to use a breatalyzer as the defacto standard instead of running an actual BAC test from a blood sample before accepting that their decision was based on the accuracy of the measurement.

This is before factoring in that many organic compounds contain an alchol group that will absorb the same light spectrum. There have been cases of people reading over the limit that have witnesses to confirm that they were not drinking. The one that always comes to mind first, is the person that did fire breathing for a living. The lighter fluid that he used spiked the detector. This was only on his breath, it would have made him sick if he drank enough to raise his BAC, but they refused to draw an actual blood sample for testing. I have also had police officers tell me to always refuse the breathalyzer because they are not accurate. The fine and penalties for refusing are nothing compared to a false posative.

Would you please give some insite on why you have determined that these machines are accurate enough to ruin someones life without giving them the chance to even verify that there was not an error made in the mathmatical conversion or even a software bug? Do you even understand the full consequences of "just take the punishment" A DWI is one of the most serious offenses you can be convicted of. Would you expect someone that killed someone in self defense to just take the murder wrap instead of using evidenance that they were being attacked to prove it was self defense? The mere fact that this person is now in a position that he has to prove his innocence based on what a machine said should grant him the right to all evidence that might prove him innocent.

Re:Sigh (2, Informative)

futuresheep (531366) | more than 6 years ago | (#20175757)

no matter how sober you think you are, those things are damn near never wrong.

Read this before you think you can be sure about that. They can be wrong, especially the older ones.

Link [wikipedia.org]

Or the the machines may not have been tested properly:

Link [nwsource.com]

Intoxilyzer? (1, Funny)

Anonymous Coward | more than 6 years ago | (#20175167)

Intoxilyzer? Really? That sounds like the name of a Judas Priest album or something...Painkiller, Turbo Lover, Juggulator, Intoxilyzer...

Re:Intoxilyzer? (1)

Skater (41976) | more than 6 years ago | (#20175321)

...Nostradamus...

No, wait, that's not right!

(I say this as a big fan of the Priest. :) )

Why oppose it? (1)

El_Muerte_TDS (592157) | more than 6 years ago | (#20175189)

It's not like you can cheat the device when you saw the source.

Re:Why oppose it? (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#20175419)

DUI is one of the most contested charges (certainly here in the UK), people are always trying to find some minor technicality to get off.

They probably want to find some bug and then say "Aha! There are probably other bugs too so it is not reliable."

A really scummy thing to do. Drink drivers are the worst kind of scum though, so that's hardly surprising.

Re:Why oppose it? (0)

Anonymous Coward | more than 6 years ago | (#20175707)

Here in the US, we have a principle called "innocent until proven guilty". As a result, this alleged drunk driver is afforded the presumption of innocence. For all we know, the machine really is flawed. What's wrong with letting the defense take a peak at the source code to see if there are flaws that could have resulted in a faulty blood alcohol test?

The alternative is just trusting the unquestionable black box. What if it incorrectly fingers you for drunk driving next time?

Re:Why oppose it? (1)

swb (14022) | more than 6 years ago | (#20175497)

I'm sure the DPS' Campion is concerned that should the defendant find some reason to cast doubt on the validity of the results, the state could find itself having hundreds or possibly thousands of current cases thrown out and many times that many convictions vacated.

I think it also goes along with general cop/police state mindset where you don't want to give away anything, especially something like DUI automatic conviction machines.

Re:Why oppose it? (0)

Anonymous Coward | more than 6 years ago | (#20175667)

Well judging from my own experiences going on contesting a relatively minor traffic offense, the entire car related side of the legal system is more concerned with conviction rates than the actual charges or ensuring the safety of the populace. Even if you state up front 'I'm innocent I won't plea bargain, and I WILL go to court' they spend more time trying to pressure you towards settling than on actually working towards ensuring justice is done.

But hey, like Cardinal Richlieu (sp?) said: 'Give me 6 words from the most pious of men, and I can finding within means to hang him' :)

Captcha: Forgot.
        Ex: 'We forgot our civil rights, and right to be presumed innocent until proven guilty in a court of law.'

SCO? (3, Funny)

Goody (23843) | more than 6 years ago | (#20175191)

Does the defendant work for SCO?

The source code? (3, Interesting)

Anonymous Crowhead (577505) | more than 6 years ago | (#20175199)

How about the hardware schematics? You'd think he'd need those even more. He's just being an ass.

Source Code Revealed (5, Funny)

fyrie (604735) | more than 6 years ago | (#20175201)


10 print "U R DRUNK!!!"
20 GOTO 10

Re:Source Code Revealed (1)

Majestix (41486) | more than 6 years ago | (#20175435)

ROFL!!!

That one brought a tear to my eye!!!

Re:Source Code Revealed (0)

Anonymous Coward | more than 6 years ago | (#20175993)

Yet another case where "Go To Statement Considered Harmful" holds.

DUI defendant would have been better off (2, Insightful)

erroneus (253617) | more than 6 years ago | (#20175207)

...if they completely refused the defense access to the source code. There's more reasonable doubt to be had when there are "ominous secrets" from which to draw doubt. But now their only hope is to find reasonable doubt in the form of bugs in the source... a lot less likely.

DUI defendant would have been better off REFUSING (0)

Anonymous Coward | more than 6 years ago | (#20175323)

The defendant would have been even better off if he had refused to take the breathalyzer test altogether.

You lose your license for a year under the dubious assertion that driving is a "privilege", despite the protection of the 5th Amendment, but you do NOT get a criminal conviction on your record and your insurance does not balloon.

Re:DUI defendant would have been better off (1)

SheldonYoung (25077) | more than 6 years ago | (#20175345)

... only if you believe in bug-free software.

There is a good chance there is some bug that can be found to cast reasonable doubt. An off-by-one error, a timing issue, an uninitialized variable, anything along those lines.

Re:DUI defendant would have been better off (1)

Otter (3800) | more than 6 years ago | (#20175375)

I'd guess that that was his plan all along, that as with the previous cases the company wouldn't provide the source code. He can still look for some lack of bounds checking or what-have-you, or find a GOTO and bring in one of the experts from here to explain how GOTOs make your code magically not work.

No way is there a meaningful bug. Those things are calibrated constantly and someone would have noticed it. Unless he got pulled over at midnight on January 1, 2000 or something like that.

Err.. I need some too... (1)

nullkill (835502) | more than 6 years ago | (#20175211)

I should try this defense with everything. "Sorry officer, but unless you can produce the source code for all those kittens I drowned in my cousin tim's baby pool, I haven't done anything wrong."

Re:Err.. I need some too... (0)

Anonymous Coward | more than 6 years ago | (#20175357)

For all we know, the kittens' lungs just stop working randomly.

Owner (5, Insightful)

Intron (870560) | more than 6 years ago | (#20175219)

The code is owned by the company that makes the equipment. So what? Information which matters in a court case gets subpoenaed all the time. What makes software any different then private mail, bank account records, or anything else?

Re:Owner (2, Funny)

blackicye (760472) | more than 6 years ago | (#20175279)

The code is owned by the company that makes the equipment. So what? Information which matters in a court case gets subpoenaed all the time. What makes software any different then private mail, bank account records, or anything else?


Hmmmm..I think you're on to something!

1) Perform incriminating act involving proprietary device.
2) Get Caught.
3) Demand Source Code to said device.
4) ???
5) Profit?

err or something like that

Re:Owner (1)

RingDev (879105) | more than 6 years ago | (#20175623)

That Step 4) is a gag order. And you left out Step 6) where the owning company sues you for all of the profits in Step 5).

-Rick

Re:Owner (1)

Bamafan77 (565893) | more than 6 years ago | (#20175831)

1) Perform incriminating act involving proprietary device.

2) Get Caught.

3) Demand Source Code to said device.

4) ???

5) Profit?

heh, exactly. Asking for the calibration records was the old way of getting out of speeding tickets, but now we can ask for both calibration records AND the source. And since NO software source is bug free, I predict an end to prosecutable crimes where the evidence is machine-based.
I wonder if I could setup a business with a lawyer where all I do is find bugs in software used to prosecute clients? Hmmm.... :)

Wow.... (2, Interesting)

GodCandy (1132301) | more than 6 years ago | (#20175221)

Not to question his motives in this case but what the hell do you need the source code for a breathalizer for.

if ($input > $limit)
{
execute(arrest);
}
else
{
execute(warning);
}

I guess maybe there is more to it but does he really think he is going to get his case dismissed because he finds a unrelated flaw in the code.

Re:Wow.... (2)

raehl (609729) | more than 6 years ago | (#20175255)

He might have gotten the evidence dismissed if the state failed to provide the source code....

Re:Wow.... (2, Funny)

edraven (45764) | more than 6 years ago | (#20175301)

That's the source code for the cops. The breathalizer is probably more complicated. ;)

Re:Wow.... (1)

PPH (736903) | more than 6 years ago | (#20175581)

try {
  if ($input > $limit)
  {
  execute(arrest);
  }
  else
  {
  execute(warning);
  }
} catch( ex ) {
display( "999" );
}

I've seen worse examples.

History of these machines in Minnesota (3, Informative)

scanlanj (1140555) | more than 6 years ago | (#20175613)

The previous machine, the Breathalyzer, went out of use when it was proven (by defense attorneys) that it was susceptible to RFI. The "new" machine, the Intoxilyzer5000 (and this was 25 years ago) was microprocessor based. It had an RFI detection circuit which was supposed to invalidate results if RFI was present. Other known issues are burping and chewing tobacco. Trouble is, the RFI detector was a comparator driving a login input. Without the software, you can't prove the box's performance from a white box perspective. That's trouble when you're relying on a machine vs. videotaped evidence of impairment.

I just love this quote (4, Funny)

microbee (682094) | more than 6 years ago | (#20175269)

(his attorney, Jeffrey Sheridan, as saying) the source code was necessary because otherwise "for all we know, it's a random number generator."

Source code not enough. (1)

Spy der Mann (805235) | more than 6 years ago | (#20175329)

The toxylizer that was used to mark him needs to be confiscated and reverse-engineered to see if the code running on it, is effectively produced by the source code in question (It could be modded, youknow). If it can't be found, then we can safely assume that the evidence has been altered.
Voila, reasonable doubt.

"reasonable doubt" & further (blood) tests (3, Insightful)

Animaether (411575) | more than 6 years ago | (#20175509)

is two terms... what part makes it "reasonable"?

Don't get me wrong, but if "the possibility, however remote, that a device, at the time at which it was used, did not operate according to specification" makes for 'reasonable doubt', then you would never see another speeding ticket, DUI ticket, etc.

Back on-topic.. don't people who get caught with a breathalyzer (is what they're more known as over here) get taken to the station for a more thorough and accurate, possibly blood, test to determine the blood alcohol level, before going through the steps of fining? As far as I know, the breathalyzers for that exact reason are set up to be moderately lax, as false positives would just be a giant waste of time + money on both the part of the government -and- the person who got tested, causing collateral damages everywhere.

Re:"reasonable doubt" & further (blood) tests (0)

Anonymous Coward | more than 6 years ago | (#20175679)

This actually does happen.

Many good defense attorneys ask for a Calibration log for breathalyzers or for speed-deteector RADARs along with proof of recent training or certification of the officer in question. If the department (police or sheriff's) cannot provide proof of calibration or proof that the officer or deputy in question was adequately trained in the use of the device, then the results of the device can be and ARE challenged, often resulting in the case being dismissed.

used to be a reserve deputy, not a drinker... :)

Re:"reasonable doubt" & further (blood) tests (1)

vranash (594439) | more than 6 years ago | (#20175717)

What about with 'pacing'? Does an officer have to be certified to do that, and how about proving the length of time between them leaving a stop light, and 'pacing' you.

Re:"reasonable doubt" & further (blood) tests (0)

Anonymous Coward | more than 6 years ago | (#20175785)

Ask for calibration records of the pacing vehicle's speedometer and for the calibration records of the calibrating device, as far up the chain as possible for the calibration standards.

Then make sure to have your own speed-o'=meter calibrated; you're very likely to be with +/- 5% of the nominal speed shown on your device. If your vehicle shows up with a speedometer that's tweaked slow, well there you go! If it's tweaked fast, oh well.

Re:"reasonable doubt" & further (blood) tests (2, Informative)

Anonymous Coward | more than 6 years ago | (#20175857)

Back on-topic.. don't people who get caught with a breathalyzer (is what they're more known as over here) get taken to the station for a more thorough and accurate, possibly blood, test to determine the blood alcohol level, before going through the steps of fining?

 
no, not at all. as a matter of fact, quite the opposite. in most states you will never be informed that you can in fact have a blood sample taken. you will blow on a machine like this and that will be all she wrote for you. had i know this, i would have asked for the blood test. there are many reasons why. first off, when you ask for a blood test (you usually have to provide (call) the doctor to take the blood sample, yourself, and pay for the doctor) you have about an hour, give or take, before the doctor gets there. this little bit of time might mean the difference between passing and failing. second, if you take the blood test, there is evidence that you can use in court in your defense -- whereas, if you only do a breath test, the only evidence that exists if it goes to court is a print out that the police have with a number on it.
 
i blew on a draeger alcotest 7110 mkiii, and let me tell you, i got totally pwned. the guy that blew in front of me was way way over the limit and smelt of pure scotch. sure, they swapped the mouthpiece before i blew, but not the tube itself. well, this unit, inbetween tests, will draw air through the top of the machine to clear out the chambers for the next test. so, basically, when i blew right after him, i am convinced that there was still residual alcohol inside of the tube which in turn got me arrested and a dui on my record.
 
  whats funny is, at the time, the draeger alcotest 7110 mkiii was being contested in 4 states. i was going to fight it, based on those grounds, until i saw a case from a county in my same state. this guy blew the legal limit, and went to court to challenge the results. you see, with most breathalyzers the state /has/ to calibrate them every so often, and, if they cannot produce the documents proving the last time it was calibrated, you walk. that guy tried to get by on that paired with the residual alcohol stance. see, the draeger is actually quite advanced, it does the two most popular tests. infrared spectroscopy and electro chemical cell. but, inbetween tests, the machine does a self diagnostic. well, in this poor guys case, the state couldn't produce the documents showing the last time it was calibrated, but, the judge said, since the unit preforms a self test every time, that was good enough. sent him to jail for 4 years, first offense, driving at exactly the legal limit.
 
let me finish with this. for all of you that don't know, the breathalyzers dont tell you your blood alcohol content, they tell you your BREATH alcohol content. this number is then multiplied by some outrageous number like 1200, and thats how they estimate your blood alcohol content. this is why many people that dont fit the 'average' in terms of body mass are often falsely convicted.

Re:Source code not enough. (2, Insightful)

Vellmont (569020) | more than 6 years ago | (#20175521)


The toxylizer that was used to mark him needs to be confiscated and reverse-engineered to see if the code running on it, is effectively produced by the source code in question


Nonsense. You could take your argument to the next level and say there's something different about the hardware in the machine. Black-box testing of this thing should prove that it works (and ultimately is a better test than looking at source code).

I can't believe this thing is all that complicated as far as inputs go (like a guy blowing in a tube). To prove it works you'd only need to test it against a series of knowns. That'll easily prove it's not a "random number generator".

This case is just about someone with a chunk of money that's trying to get out of drunk driving. While I think it's a good thing that you can get the source code to something that's effectively testifying against you, I think this case is hardly anything approaching a miscarriage of justice.

Re:Source code not enough. (2, Insightful)

RingDev (879105) | more than 6 years ago | (#20175761)

Agreed, the outcome of the case itself is petty. Provided the breathalyser is functioning correctly (easy enough to test with a simple double blind survey with a number of devices of the same function). But it would be nice to see a precedence set that affirms the right of a person to review the code of a digital object being used to "testify" against them.

And in the over all "good" side of this argument, more eyes can make better software. Even if this guy gets off with nothing due to the source, it can only drive to make the source better.

-Rick

Language? (5, Funny)

Bazman (4849) | more than 6 years ago | (#20175271)

What's it written in? Double Visional Basic? Lishp?

Brainf**k maybe...

Re:Language? (4, Insightful)

Bluesman (104513) | more than 6 years ago | (#20175481)

"Brainf**k"

Thank you for editing out that nasty word, or reading that might have fucked up people's brains.

This joke brought to you from Larry Wall, courtesy of Bluesman Slashdot Posting, INC.

Why bother? (1, Interesting)

Anonymous Coward | more than 6 years ago | (#20175283)

Now, I understand that it is just default to keep source code for no good reason, and it also seems like the default for the state to fight defense evidence gathering even though that is wholly unethical, but this seems ridiculous. If he thinks he's going to prove something, let him try. Fighting it makes it look like he will, which means you'll just look stupid when he doesn't. Because he can't, because that makes no fucking sense.

I mean seriously, what the fuck is the source code going to show? There is not going to be shit in there for intentional false positives. There wouldn't be any reason for that on the part of the maker. I also don't see how there could be accidental false positives related to the source as opposed to mechanical failure. I mean, it's a simple num>X check. He probably thinks he can technobabble his way out of it, but that shit is not going to work. There's a chance it could fool the average /. editor of course, but it's not going to fly in the court, and the prosecution is going to look retarded for trying to stop him.

Re:Why bother? (1)

JoshWurzel (320371) | more than 6 years ago | (#20175515)

"There wouldn't be any reason for that on the part of the maker."

I can think of a very good reason: no government is going to be buy a device to catch drunk drivers if it doesn't indicate the presence drunk drivers. Remember, gov't officials aren't too bright. If they were testing competing devices, they may have just gone with the one that turned up more drunks, regardless of whether or not they *were* actually drunk. I'll admit its of the same paranoia that gets us the "Symantec must be making viruses so that people will need to buy Norton!" complaint. However, I have heard stories (not claiming this is data) of red-light cameras that snap a few fractions of a second too early, bringing in millions for the city until someone figures it out. I can imagine the same logic with a breathalyzer.

Re:Why bother? (1)

MightyMartian (840721) | more than 6 years ago | (#20175545)

I would imagine he's hoping that the prosecutors get so nervous at the thought of this precious software which they use against so many drunk drivers could possibly have problems that they'll just let him walk.

Re:Why bother? (1)

HomelessInLaJolla (1026842) | more than 6 years ago | (#20175551)

what the fuck is the source code going to show? ...I mean, it's a simple num>X check
You missed the part of significant figures in high school math class. You can't determine two significant figures from a test procedure which can barely assure one.

You also missed the part about IR spectroscopy in chemistry. The wavelengths used, ~3000 cm^(-1) and ~1600 cm^(-1), are neither selective for ethanol (apart from other alcohols, ketones, and aldehydes) nor are they particularly quantifiable. Even FT instruments can only give one or two sig figs on concentrations and that only when all experimental parameters are tightly controlled.

Yes, the introxilyzer will tell you "yes" or "no", but it really can't tell you if "yes" means 0.06 vs. 0.26, and it sure as heck has no way of knowing if "yes" is ethanol or if "yes" is your cologne.

A former coworker of mine was a state trooper. He told us stories of how they used to test anything and everything in those things to see what would produce false positives. The inference was that, if they pulled over a guy who smelled like beer but was doing okay on the field tests, they'd give him a DNF, put a little bit of a foreign substance on their fingertip, and rub their fingertip over the intake tube before putting the mouthpiece on. Some of their DUI defendants would mention that something tasted funny in the mouthpiece, but that's probably just leftover from the packaging *wink* *wink*.

Re:Why bother? (1)

Myrv (305480) | more than 6 years ago | (#20175729)

I mean seriously, what the fuck is the source code going to show? There is not going to be shit in there for intentional false positives. There wouldn't be any reason for that on the part of the maker. I also don't see how there could be accidental false positives related to the source as opposed to mechanical failure. I mean, it's a simple num>X check

I doubt very much it's a simple num>X check. The source probably contains either lookup tables or fitting parameters to map values recorded from the hardware to values indicating blood alcohol levels. There could be errors in these values. The article also doesn't say what value he blew. If it was 0.081 there may be rounding errors in the code that added that extra 0.001. Also the article mentions the device uses a Z80. As far as I know the Z80 doesn't have native floating point support so some scrutiny on how floating point is implemented could be in order. I doubt very much he'll find a real error but there is no harm in asking.

Of course my fear would be he does find a bug that has no material impact on the results but he gets off because he can show some part of the code is defective. In this case I would hope the judge/jury/prosecutor are smart enough to recognize a non critical bug for what it is.

Does the unit differentiate acetone from alcohol? (5, Interesting)

fedorowp (894507) | more than 6 years ago | (#20175401)

Before you hang the guy, perhaps we should consider he may be on a low-carbohydrate diet and the unit fails to distinguish acetone from alcohol.

Just four months ago a Virgin Atlantic pilot was arrested and taken off the aircraft he was the pilot of for a flight from Heathrow to JFK. Several days later, all charges were dropped when the results of the blood tests proved him innocent.


Pilot arrested on drink charge [bbc.co.uk]

Diet clears drinking-arrest pilot [bbc.co.uk]

Yes, it probably does... (4, Informative)

neapolitan (1100101) | more than 6 years ago | (#20175803)

A low-carb diet (e.g. Atkins diet) can indeed make you "ketotic" and raise your breath acetone level.

From your college chemistry course acetone has a C=O bond, while alcohol is a C-OH bond.

Cheap breathalyzers will use a chemical reaction to detect the alcohol in your breath -- often potassium dichromate (these are the ones that go from red to green with alcohol).

More advanced models (such as the ones the police would use, would use essentially spectroscopy to try to measure the resonant absorbance of the C-OH bond. This would not be fooled by acetone, which has a much different absorbance of the C=O (approximately 1700 cm-1 IIRC). There are also variants of this method.

If you are ever innocent and accused, get a blood test, which really is a quantitative direct measurement and can be confirmed, with very little chance of being fooled.

If you are not innocent, **IN THEORY** the easiest way to lower your reading is to silently hyperventilate prior to blowing. This would prevent equilibration of the alcohol in your bloodstream with the air in your lungs that you just breathed in and out. It is far from perfect, and I would strongly advise to never drive drunk, nor rely on this method.

Additional references: http://wiki.answers.com/Q/Could_elevated_ketone_le vels_produce_inaccurate_Breathalyzer_results [answers.com]

Re:Yes, it probably does... (2, Interesting)

HomelessInLaJolla (1026842) | more than 6 years ago | (#20175907)

You've presented a horribly simplified edition of the actual science which lends itself to dismissing the issue. While acetone itself will not produce a false positive, the presence of acetone in the test will artificially inflate any reading which is picked up from any alcohol. So, for example, if you had one beer and are hyperketotic, it will look like you had six beers. If you had no beers, but the arresting officer coats the intake tube with a little bit of non-acetone fingernail polish remover, you're now over the legal limit.

Have you ever seen the ~3000 cm^(-1) peak on an IR instrument? It's a _HILL_. It's not a single line peak. The size of that hill is known to chemists to vary based on ambient temperature, humidity, air composition (high/low oxygen/nitrogen/CO2), concentration of the sample, and even, when all of those factors are well-controlled, variances from one experiment to the next are still observed.

Source code will show ways to defeat the device? (1)

schwit1 (797399) | more than 6 years ago | (#20175441)

Maybe the state is afraid somebody will be able to determine a consumable that will defeat the device. Maybe the state is already aware of such a thing and doesn't want it public.


If all breathalyzers work in the same manner it would throw DUI law enforcement for a loop.

The good old fashioned blood test? (2, Insightful)

grolschie (610666) | more than 6 years ago | (#20175467)

C'mon. We shouldn't rely on such devices as evidence anyway. IMO devices are useful for detection, but not conclusive. In my country electronic devices are used to detect alcamahol all the time, but these are not used as evidence. The defendant must immediately give a blood sample - or be prosecuted for not supplying blood.

When early electronic breathalizers first came out here years ago they either didn't detect the alcohol at all, or they false alarmed by detecting toothpaste and aftershave. The blood test is conclusive. Why should we trust these new tech devices? I mean people here successfully challenged the accuracy of speedcameras and other such devices. We want to be sure.

Case by case (1, Insightful)

Anonymous Coward | more than 6 years ago | (#20175921)

You're way overgeneralizing. There are good and bad devices. Just because "early electronic breathalizers" were supposedly faulty, or speed cameras have been successfully challenged, does not impugn all other technology. That's just absurd.

Each device and/or technology has to be evaluated on a case by case basis to determine its accuracy and reliability. I would guess that even within the "breathalizers" category, there is a wide range of devices with varying accuracy. There are probably a few stinkers that are habitually inaccurate and/or constantly breaking, and there are probably a few that are absolutely rock solid and dead-on accurate.

To suggest that "we shouldn't rely on such devices" just because others have failed in the past is just being a Luddite.

Re:The good old fashioned blood test? (0)

Anonymous Coward | more than 6 years ago | (#20175991)

All Heil our new overlord Grolschie (strange coincidence your ID ending '666'). Shall we add their DNA to the national "as yet to be a criminal" database as well?

Additional info (3, Informative)

y2imm (700704) | more than 6 years ago | (#20175513)

"Wetzel was arrested at his home on Feb. 25 after allegedly rear-ending a car with his pickup truck and then driving off. He faces five gross misdemeanor charges, including causing bodily harm and driving while intoxicated." FREDERICK MELO Pioneer Press

Right to cross examine witnesses against me (0)

Anonymous Coward | more than 6 years ago | (#20175517)

If some "testimony" of a machine can be used to take away my freedom, I would need access to any mechanical plans or source code that forms that testimony.

Seems only fair even if it feels like a technicality to some and the source code will reveal nothing exculpatory.

Seems to me this will be more common as this sensor technology becomes more ubiquitous and used for drugs, explosives, performance enhancers, etc.

Read the article AND the State owns the Code! (0)

Anonymous Coward | more than 6 years ago | (#20175533)

The argument he is making come from the contract that the breathalyser company made with the state. The contract says that (from the article:) "all right, title, and interest in all copyrightable material" that CMI creates as part of the contract "will be the property of the state." => The state owns the source code, and the company needs a better contract manager, so ha ha to the company for losing it's source code due to dumb legal mistakes! Muhahahaha

Maybe thats what he wanted.. (2, Insightful)

u0berdev (1038434) | more than 6 years ago | (#20175547)

To get drunk, get caught, demand the breathalyser source, so he can rip off it and create his own competing product! Muhaha! It's genius!

I bet the reason there was resistance.. (4, Informative)

Sloppy (14984) | more than 6 years ago | (#20175561)

..has nothing to do with this case, and little to do with who holds the copyright. What if he does find flaws, and others have already been convicted using output from the same machine? Suddenly, all those past cases come back up.

I guess the lesson here is: the source should already have been public and heavily scrutinized. I don't want my government spending my tax money and wasting time in court, to get convictions based on evidence from mysterious unaudited machines. Why? Because sooner or later, some defendant is going to want the mystery peeled back. Some defendant is eventually going to want a fair trial. Might as well give that fair trial to the first one, so that a bunch of expensive shit doesn't have to get re-done (or so that a bunch of guilty people don't end up walking free, simply because the cops used a defective machine that ended up collecting untrustworthy "evidence").

Keep mysteries out of court, from the start. Don't let a big list of convictions that depend on them, build up. The chances of the device being defective are probably pretty low, but you know there's gotta be some prosecutors with pits in their stomachs.

Freedom of Information Act??? (2, Interesting)

BUL2294 (1081735) | more than 6 years ago | (#20175981)

[...] The source should already have been public and heavily scrutinized. I don't want my government spending my tax money and wasting time in court, to get convictions based on evidence from mysterious unaudited machines. Why? Because sooner or later, some defendant is going to want the mystery peeled back. Some defendant is eventually going to want a fair trial. Might as well give that fair trial to the first one, so that a bunch of expensive shit doesn't have to get re-done (or so that a bunch of guilty people don't end up walking free, simply because the cops used a defective machine that ended up collecting untrustworthy "evidence").
You know, I was thinking the same thing. Chicago recently put up red-light cameras where if you violate, you get a ticket in the mail. But before I get burned, I was thinking of filing a Freedom of Information Act request to get the source code and/or the "version info"/bugfix list, along with the version info for every red-light camera in the city--and info on how the computer operating systems & how they are networked. (Please don't say they run XP and are networked using the Internet in some way!!!) I've seen other peoples' tickets and the picture always includes the software version number on top. What if I knew that particular version had a bug where one camera snaps the picture 1 second before the others do (or something like that)??? Now, I have even more reason to ask for the source code!

Is the guy looking for bugs in the source? (1, Funny)

Anonymous Coward | more than 6 years ago | (#20175711)

I wonder if he had his own 'buffer overflow' right in front of the officer? Maybe some wayward output streams?

Responsibility in DUI Laws (4, Insightful)

Uksi (68751) | more than 6 years ago | (#20175929)

We need responsibility in DUI Laws [www.ridl.us] . Drunk driving is a terrible problem, but the way the states are dealing with it is not good. The BAC limits have been creeping ever so lower, as to raise the revenue from someone having a glass of wine after dinner when stopped at a roadblock. This is not actually helpful in impacting road safety.

Also, breathalyzers have a +/- 20% error [duiblog.com] , which is rather unfortunate.

Ignition interlocks have a .02 BAC margin of error, so they are set to legal_limit - 0.02, so in a 0.05BAC state, they are set to 0.03. Go on a date and take the girl home on a bus. This is why you should not support mandatory ignition interlocks.

We need to deal with the drunk driving problem responsibly: provide good public transportation options (Boston, extend trains until after 2am, you listening?), encourage designated drivers, and provide massive roaming police enforcement, looking for erratic driving and dangerous behavior (substantially more effective [abionline.org] than roadblocks).

Just don't open your mouth (3, Informative)

nate nice (672391) | more than 6 years ago | (#20175959)

We're already seeing a ton of people with absolutely no legal background commenting on legal things. Here's a tip: the law doesn't work like you probably think it does. The law is rational or reasonable. It's a jumbled mess of subjective orders and expressions that lawyers can mold into defense or complaint.

Looking at the source code could very well be the basis for a very solid defense that beats whatever state statues and ordinances the defendant is suspected of violating. We have no idea what's in the code so why not? Crappy programmers probably wrote the software and it probably wouldn't be hard to find something that doesn't function right or doesn't map just right to a state issued requirement for the system.

If this gun reading is the states main piece of leverage it's because this device conforms to some strict requirements defined by the state. So maybe looking at the code will show that it doesn't and that the machine is in fact illegal.

Lastly, if you ever get pulled over for something like this, don't talk. That is when they ask if you've been drinking, always say no. What does "drinking" mean? Well, it's not up to you to define this at that time. Let your lawyer handle it. Never tell a cop you might be breaking the law. Because once you've admitted that you have been drinking, they can ask you a whole bunch of other questions that can only hurt you. How much? For how long? Where at? Where are you going? With who?

Here's a sample:

Officer: Have you been drinking?

You: No.

Officer: I smell alcohol.

You: I haven't been drinking, officer.

He'll still ask you to get out and do his little tests. But you've never admitted to anything. This can help a lot down the road. In short, never say anything you don't have to.
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