As I’ve posted in the past, when you are charged with drunk driving you will be afforded your constitutional right to trial — but a trial by machine. Quite simply, the law reverses the presumption of innocence and presumes that you are guilty if the machine registers .08% or higher; the judge will instruct the jury they must convict you if you cannot prove your innocence.
In other words, the accuracy and reliability of this gizmo is rather important. And what runs the device? A computer. What runs the computer? Software. What programming code is contained in the software? The manufacturers refuse to reveal it, claiming profits from protecting “trade secrets” trump a citizen’s right to due process and fair trial. We must take it on faith that the breath machines made by various manufacturers are accurate and reliable.
I recently posted about attorneys in New Jersey who were finally able to get the Supreme Court of that state to order the manufacturer of the locally-used breathalyzer model to reveal the machine’s software program. In that case, the Draeger Corporation was ordered to reveal the software code for their AlcoTest 7110. Defense attorney Evan Levow turned the code over to a computer laboratory to analyze. The results are set forth in that post, “Secret Breathalyzer Software Finally Revealed“. In essence, the lab concluded that there were no “trade secrets” involved, and that:
The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete â€œwhite boxâ€ and â€œblack boxâ€ testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the â€œtrial and errorâ€ method. Several sections are marked as â€œtemporary, for nowâ€. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding styleâ€¦
As I’ve said repeatedly before, the simple fact is that that these machines are unstable, unreliable and inaccurate — and software problems are only one of the many reasons.
Attorneys in other states are also beginning to get the courts to recognize that perhaps defendants have a right to know if the machine which is acting as judge, jury and executioner is accurate. Another manufacturer of another breathalyzer device is now facing a legal sanction they can understand — loss of profits — if it does not reveal the software code:
CMI’s Refusal to Disclose Software ‘Source
Code’ Has Stalled DUI Cases
Sarasota County, FL. Herald Tribune — Facing court fines and the possibility of losing future sales, the company that manufactures the state’s drunken-driving breath-test machines has agreed to give DUI defendants a look at how one works.
What defense attorneys hope to find inside is proof of their suspicions that the software inside the briefcase-size machines makes mistakes while calculating a driver’s blood-alcohol content from a breath sample.
So far, they remain only suspicions. In courts across the country, CMI Inc. of Kentucky has refused to disclose the “source code” of the software in the widely used Intoxilyzer machines.
But now that refusal is hurting CMI in the pocketbook, and the company is agreeing to release the code under certain conditions.
Judges in Sarasota and Manatee counties — where more than 300 DUI cases are stuck in the system — have fined CMI more than $100,000 for not allowing computer experts for the defense attorneys to view the software’s source code.
And Minnesota is considering scrapping CMI machines for a competitor’s devices so prosecutors have results that will not be thrown out of court, according to Minneapolis-
area defense attorney Jeffrey Sheridan.
“They’re starting to understand they’re going to lose their market share, and they’re starting to wake up and decide to do something,” said Sheridan, who won a state Supreme Court battle over CMI’s source code this year.
Defense attorneys have challenged the Intoxilyzer machines on the software issue for nearly two years, insisting that defendants should know everything about a machine that could send them to prison.
A blood-alcohol content reading is the most powerful piece of evidence against a drunken driver, and errors in the software could mean drivers never know if the machine is working properly, defense attorneys say.
CMI has refused to turn over the source code, saying it is a trade secret that its competitors can use to learn how it is so successful — and does nothing to prove the accuracy of the machines.
For years, the big corporations have refused to comply with court orders to turn over the software running their machines — and convicting citizens of crimes they may not have committed. Now that the “trade secrets” shield has been shown to be a fraud, the corporations are facing the ultimate sanction: loss of profits. And that trumps everything.
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