And just in time for St. Patrick's Day:
Posted on 03/17/2006 10:16:21 AM PST by Smogger
MIAMI - Timothy Muldowny's lawyers decided on an unconventional approach to fight his drunken driving case: They sought computer programming information for the Intoxilyzer alcohol breath analysis machine to see whether his test was accurate.
Their strategy paid off.
The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A county judge tossed out Muldowny's alcohol breath test — a crucial piece of evidence in a DUI case — and the ruling was upheld by an appeals court in 2004.
Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say.
"Any piece of equipment that is used to test something in the criminal justice system, the defense attorney has the ability to know how the thing works and subject its fundamental capabilities to review," said Flem Whited III, a Daytona Beach attorney with expertise on DUI defense.
(Excerpt) Read more at msnbc.msn.com ...
Fascinating.. I think if you are going to substitute the judgement of a machine for that of people, the people have a right to examine the sourcecode (Traffic cameras, radar detectors, etc.) You can't cross-examine a machine (which is probably why prosecutors' like them so much), but it does have built in biases that the source code will reveal.
Silly argument. It should be sufficient to prove that the equipment yields correct results, not how it does so.
Can you imagine a suspect getting to examine the source code for the FBI fingerprint matching software?
This type of ruling could also have impact on election results. I could envision the Democrats asking that an election be overturned based on the use of computer voting (perhaps they already have?).
A simple thing as whether it rounds numbers up or down can mean the difference between a DUI and a pass.......
Silly, but successful.
What a spurious analogy. People aren't convicted of crimes based on "FBI fingerprint matching software." An expert, who can be cross examined, testifies.
It was a nice tactic in front of a sympathetic judge, but it will not be widely applicable to the majority of Floridians.
I don't think so.
As long as the law enforcement agency using the device can prove and show documentation that the device was properly maintained, tested and calibrated by professionals on a regular basis, then that should be good enough for any judge.
Showing how the thing works is far less important once evidence from these devices is accepted as valid. And that was done a long time ago.
I wouldn't call it a "silly" argument. It's won in several courts. It's pretty persuasive to me, actually.
Private companies produce equipment bought by police forces to prove very serious, life-altering charges against individuals. Of course the individuals have the right to challenge not just the accuracy of the machines in general, but to specifically challenge that the machine got it wrong IN HIS CASE.
Moreover, the company's privacy could have been protected by various court orders and judge-imposed rules. So, if the company selling to the cops simply will not release the source codes, and convictions are overturned thereby, well, it looks like the cops need to buy from companies who WILL reveal their source codes in court, and the ones who won't will lose market share.
This is nothing new. Defense attorneys in Texas have been using the secret source code from the machine to get DUI cases tossed for years. Absolutely nothing revolutionary or new about this defense.
If everyone *I* knew needed to know of this defense, I'd have to come to the conclusion that I'd need to know other people.
Anyone who drinks and gets behind the wheel of a car is an idiot (and that's being mild).
You mean that one that erroneously claimed that an American was involved in the Madrid bombings?
Computer voting is the Democrats' friend. In many precincts, the voter rolls are databases of the dead and the entirely non-existent. The MAYOR of detroit admitted that in his city alone there were 150,000 problematic registrations.
If someone takes a Breathalyzer test and it shows a blood/alcohol level of 0.12%, how can anyone prove that this is, in fact, a "correct" result?
Can you imagine a suspect getting to examine the source code for the FBI fingerprint matching software?
I'm not sure this is an exact parallel. Fingerprint matching software does not "match" fingerprints in a way that humans cannot -- it simply checks fingerprints against a central database much faster than a human can. Once a match is identified by the software, a defendant can still technically claim that the match is not valid.
The biggest difference between a Breathalyzer and fingerprint matching technology is that a fingerprint is more or less a permanent piece of evidence, while a Breathalyzer provides a reading about a person's temporary condition that can't be duplicated and verified afterward.
The breathalizer in and of itself is questionable. Many biological factors affect it's results. It can accidentally measure stomach gas rather than that of the lungs. This can mean the difference between a conviction or not for many people.
A DUI lawyer will actually ask if you burped within 30 minutes of the test.
Any person being arrested would be wise to request a blood test instead.
[ Will use the following if I ever get nabbed while DUI]
Weeeeeeeelllll....howdy occifer (hic) ** Mind if I see your source mode...your morse code....your (hic)
A match to an existing print is something physical and can be re-certified by dozens of processes, but a breath test is measuring something that disappears in time and cannot be retaken. Your analogy is less then relevant.
It's silly because no one could get useful information about the accuracy of the device by looking at the source code.
And just in time for St. Patrick's Day:
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