Reply With QuoteJust another attorney stirring up the same o'l bullshit...
Police Blotter: Defendant wins breathalyzer source code
Man charged with drunk driving says his attorney needs access to the source code to fight the charges; state supreme court agrees.
By Declan McCullagh
Staff Writer, CNET News.com
SOURCE : http://news.com.com/Police%20Blotter...0wins%20breath alyzer%20source%20code/2100-7348_3-6201632.html?part=rss&tag=2547-1_3-0-20&subj=news
Published: August 9, 2007, 5:23 AM PDT
What: Drunk driving defendant says he needs the source code to the Intoxilyzer 5000EN to fight the charges in court.
When: Minnesota Supreme Court rules in his favor on July 26.
Outcome: Source code will be turned over to defense attorneys.
What happened, according to court records and other documents:
When Dale Lee Underdahl was arrested on February 18, 2006, on suspicion of drunk driving, he submitted to a breath test that was conducted using a product called the Intoxilyzer 5000EN.
During a subsequent court hearing on charges of third-degree DUI, Underdahl asked for a copy of the "complete computer source code for the (Intoxilyzer) currently in use in the state of Minnesota."
An article in the Pioneer Press quoted his attorney, Jeffrey Sheridan, as saying the source code was necessary because otherwise "for all we know, it's a random number generator." It is hardly new technology: One criminal defense attorney says the Intoxilyzer is based on the antique Z-80 microprocessor.
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.
Minnesota's original bid proposal that CMI responded to says that "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 bid proposal also says CMI must provide "information" to be used by "attorneys representing individuals charged with crimes in which a test with the proposed instrument is part of the evidence," which seems to include source code.
Campion's office, on the other hand, claims the source code is confidential, copyrighted and proprietary. It has asked for what's known as a "writ of prohibition" barring the source code from being released.
The Minnesota Supreme Court rejected the request, saying "a writ of prohibition is an extraordinary remedy and is only used in extraordinary cases."
This isn't the first time breathalyzer source code has been the subject of legal scrutiny. A Florida court ruled two years ago that police can't use electronic breathalyzers as courtroom evidence against drivers unless the source code is disclosed. Other alleged drunk drivers have had charges thrown out because CMI refuses to reveal the Intoxilyzer source code.
Excerpt from Minnesota Supreme Court's ruling:
The district court ordered the production of the "complete computer source code" for the Intoxilyzer 5000EN. In support of its order, the district court found that under the contract between the state and CMI, the state owned the source code for the Intoxilyzer 5000EN. The court of appeals concluded that the district court's finding was not clearly erroneous given the concession in the state's petition seeking the writ of prohibition that it owned that portion of the source code created exclusively for the Intoxilyzer 5000EN...
Having carefully reviewed the record presented and the arguments of the parties, we conclude that we cannot decide the copyright issues raised. Although the parties direct us to copyright law regarding works for hire and derivative works, they provide only a superficial application of that law to the facts of this case. Perhaps that is because the factual record before us is inadequate, thereby making any determination regarding either copyright theory impossible.
Extra: China's iClone Resolution of this issue, however, does not require us to apply federal copyright law because we also conclude that the commissioner has failed to meet his burden of demonstrating that the information sought is clearly not discoverable and that he has no adequate remedy at law. While on the one hand the commissioner argues that ownership of the source code for the Intoxilyzer 5000EN is to be determined under federal copyright law and that under that law he does not have possession, custody or control of the source code, on the other hand he concedes that the state owns and thus controls some portion of the source code. That concession is supported by the express language of the RFP granting CMI the right to supply the Intoxilyzer 5000EN to the state.
Further, given the express language of the RFP that requires CMI to provide the state with "information to be used by attorneys representing individuals charged with crimes in which a test with the (Intoxilyzer 5000EN) is part of the evidence" when production of the information is mandated by court order "from the court with jurisdiction of the case," it is not clear to us that the commissioner is unable to comply with the district court's order. Accordingly, we cannot conclude that the district court ordered the production of information that is clearly not discoverable...
We do not agree that the commissioner lacks adequate remedies at law. As discussed above, irrespective of whether the state owns any portion of the source code, CMI agreed, in the RFP, to provide the attorneys representing individuals charged with crimes "in which a test with the (Intoxilyzer 5000EN) is part of the evidence" information necessary to comply with a court's order. We conclude that the commissioner's ability to enforce its contract with CMI constitutes an adequate legal remedy.
None of the four circumstances justifying the issuance of a writ of prohibition...are present in this case. We, therefore, hold that the court of appeals properly denied the commissioner's petition for a writ of prohibition.
Just another attorney stirring up the same o'l bullshit...
I don't see any problem with this, if the breathalyzer is legit they should have no problem giving up the source code. After all it's reading is being used as evidence against him, he should have the right to scrutinize the means used to get the reading. Fair is Fair, innocent until proven guilty, when this device is exhibit A it needs to be shown beyond a reasonable doubt to actually be accurate.
I saw this where this article orginally came from.
They (Breathalyzers) have on average a 20% margin of error (a .8 result could actually be a .65 or .96), and make a number of assumptions which may or may not be true:
lung capacity
got diabetes, you are far more likely to create acetone which breathilzers may read as alcohol. Further a low blood sugar reaction may produce impairment results outwardly similar to driving drunk.
physical activty. get the blood pumping right before the test and the levels drop.
Many breathalyzers assume that the tested individual is an average person and do not take into account sex, height, weight, metabolism and whether that person has just eaten. Furthermore, many breathalyzer tests assume a specific ratio (2100:1) between BAC and breath alcohol content in order to make its conversions. As this actual ratio for a particular individual may vary between 1700:1 and 2400:1, a reading of 0.08 could actually mean a blood alcohol content of between 0.65 and .09. This significant gap could be all the difference in a DUI case since a reading of 0.65 would also require evidence of impairment, often in the form of field sobriety tests.
Personally I think DUI laws are screwed up. Not that I support drinking and driving, but seems to me that law enforcement agencies make too much money from it to actually find a way to prevent it. I've seen one bar that had a breathalyzer by the door. Cost like 50 cents and you got a disposable straw to blow into the machine with. Why not require bars to have these, that are free to use? At least then people could find out what their BA level is. I'm not so sure I trust the little hand held deals that are out there. Also, I heard a statistic that just as many people are killed by falling asleep at the wheel, but you never hear a public service announcement to plenty of rest and not drive when your too tired...kinda hard to test somebody and fine them for that...:idea:
I heard a statistic that just as many people are killed by falling asleep at the wheel, but you never hear a public service announcement to plenty of rest and not drive when your too tired...kinda hard to test somebody and fine them for that...:idea:
I was told by a cop here once that being sleepy while driving is chargable just like DUI.
I was told by a cop here once that being sleepy while driving is chargable just like DUI.DWS, driving while sleepy?
Um, I can see being cited for falling asleep then causing a crash, but I find it hard to believe that one could be cited just for sleepy driving ("Nobody yawn, there's a police car behind us!))
Personally I think DUI laws are screwed up. Not that I support drinking and driving, but seems to me that law enforcement agencies make too much money from it to actually find a way to prevent it. I've seen one bar that had a breathalyzer by the door. Cost like 50 cents and you got a disposable straw to blow into the machine with. Why not require bars to have these, that are free to use? At least then people could find out what their BA level is. I'm not so sure I trust the little hand held deals that are out there. Also, I heard a statistic that just as many people are killed by falling asleep at the wheel, but you never hear a public service announcement to plenty of rest and not drive when your too tired...kinda hard to test somebody and fine them for that...:idea:
Most Law Enforcement Agencies make no money off of DUIs or OUIs. Our Department gets zero dollars from fines from DUIs or any other traffic/boating violations.
In AZ there is a surcharge tacked on to every DUI and OUI conviction that goes into a fund for safety equipment for the Department of Public Safety. Which has US baffled. Sure, give them some bucks from the vehicle DUIs. But the DPS has absolutely nothiing to do with watercraft enforcement. But they still get $500 bucks from every OUI fine.
DPS is the only agency in AZ that gets funds from DUI/OUI violations. But that provision is only 2 years old.
To think that we do DUI/OUI enforcement only for money is ludicris. We'd rather get ZERO DUIs than 100. We do it to try and prevent drunk drivers from killing innocent people.
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