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Saturday, December 17, 2005

Law - Florida defense attorneys demand source code of breath analyzers

The Saturday Wall Street Journal has a front-page story (not freely available online) titled "Florida Standoff on Breath Tests Could Curb Many DUI Convictions." The lead ("lede" to some) states that a court fight over the software used in breathalizers made by CMI Group could impact other locals.

Here is an 11/18/05 story from the ABA Journal e-Report. Some quotes from the extended report:

DUI defense attorneys across the country are watching a Florida fight unfold over the right of defendants to obtain the software source code to the widely used breath-test machine known as the Intoxilyzer 5000.

At least two counties, Seminole and most recently Sarasota, have ordered the state to turn over the information. In Seminole, the state didn’t comply, and the courts suppressed breath-test evidence. So far, Bay, Brevard, Hillsborough and Leon counties have rebuffed the request.

The court challenge begins with the foundation laid by a defense expert. In the Sarasota County case, a defense expert examined the Intoxilyzer 5000s in that county and alleged that the machines had been altered and that different software versions are in use. However, he said that without the source code, which tells the device how to operate, it is impossible to determine if the changes are substantial.

Lawyers rely on Florida laws that give defendants the right to "full information" about breath-test machines and require that the machines are state-approved before being put into use.

In Sarasota County’s 12th Judicial Circuit, about 160 cases seeking the source code were consolidated, and the three judges assigned to hear criminal cases there conducted a joint hearing. On Nov. 2, they ruled that the source code must be turned over to the defense’s computer engineering expert.

"Unless the defense can see how the [breath-test machine] works and verify that it is an approved machine, it remains … nothing more than a ‘mystical machine’ used to establish an accused’s guilt," the three-judge panel wrote. Their opinion cited a state appeals court ruling and a more recent ruling by Seminole County Judge Ralph E. Eriksson. State v. Bjorkland, No. 2004 CT 014406 SC.

The date of the Bjorkland case is Nov. 2nd. In addition to today's WSJ story cited above, here is another story today, from the St. Petersburg Times. Some quotes:
LARGO - Pinellas defense attorneys began challenging breath test results Friday by using a tactic that has gotten drunken driving cases tossed out in three other Florida counties.

During a hearing Friday, defense attorneys argued the machine that tests the breath of drivers suspected of driving under the influence may be inaccurate. Worse, they say, the company that makes the machine won't hand over computer codes that would help defense attorneys evaluate the machine's accuracy.

The company says those codes are a trade secret. The State Attorney's Office says defense attorneys don't need the codes because the machines are tested for accuracy every month. * * *

The company has refused similar court orders from judges in Seminole and Sarasota counties, prompting judges to toss out breath test results in DUI cases there. Drivers can be prosecuted without the breath tests, but it can be more difficult.

If Horrox should order CMI to turn over the codes and they - as expected - refuse, hundreds of Pinellas DUI prosecutions would be in jeopardy.

Judges in several counties, including Hillsborough, Volusia, Clay and Brevard, have rejected the defense argument. Judges have split in Orange County, according to defense attorneys. * * *

Orlando defense attorney Rigo Armas, who has challenged the breath machines for years and is helping the Public Defender's Office in this case, told Horrox that attorneys have a duty to inspect every piece of evidence against their client. "That's what we're dealing with here is a mystical black box that cannot be confronted and cannot be questioned," Armas said.

But prosecutors said CMI is protected from turning over the code because of its value as a trade secret.

From the techie viewpoint, here are links to two Slashdot opening entries, from 6/6/05 and 10/19/05.

The first, from June, poses the question:

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?
The second, from October, asks whether this is part of a larger trend:
With software bugs being a fact of life, consumers and organizations could claim that they need to be able to verify an application's source code before they accept that their calculations are accurate. Think credit card transactions, speed detecting radar guns, electronic voting machines.
The electronic voting machine issue was the first thing I thought of, but as the precipitating factor for the Florida DUI challenges, rather than the reverse.

Posted by Marcia Oddi on December 17, 2005 07:47 AM
Posted to General Law Related