As I’ve written in past posts (Secret Breathalyzer Software Still Secret), defense attorneys have repeatedly tried to gain access to the secret software used to run the various models of breath-testing machines. As the geeks say, "garbage in, garbage out": erroneous or badly written software will result in erroneous test results — and thousands of citizens wrongfully convicted of DUI. Yet, manufacturers have refused to turn the software code over, claiming "trade secrets". The real reason: neither they, the police nor the prosecution want the loss of public confidence that would result from disclosure of inaccurate and unreliable software.
Bottom line: Profits trump justice.
This wall of silence was breached some time ago when the New Jersey Supreme Court ordered the manufacturers of the AlcoTest 7110 to turn over the source code. See Secret Breathalyzer Software Finally Revealed. That code was analyzed by a software laboratory. To no one’s great surprise, the laboratory found the software to consist of no "trade secrets", but rather of non-proprietary and very primitive and defective code. As the experts concluded in their report:
The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” 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 “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…
It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards…
Despite this beacon of light in the judicial darkness, the courts of other states continue to ignore the pleas of the accused to confront their accusers. Remember: in the courts of most states, a citizen is rebuttably presumed by law to be guilty if one of these machines reads .08% or higher. See my post Whatever Happened to the Presumption of Innocence? But cracks are appearing in the wall of silence. Courts in Florida, for example have ordered the source code turned over to the defense – a court order the manufacturers have refused to follow.
Yesterday, an Arizona court ordered the manufacturers of another breath-testing device, CMI Corporation’s Intoxilyzer 8000, to turn over the software code to the defense.
Lawyers Win Access to DUI-Test Software
Defense wants to test if Intoxilyzer is accurate
Tucson, AZ. Sept 13 – Defense attorneys scored a major victory Friday when a Pima County Superior Court judge ruled they should be given access to the software that powers a breath-testing machine used on suspected drunken drivers.
For the past several months, defense attorneys throughout the county have been arguing that they should be given the "source code," or software, used in the Intoxilyzer 8000.
The attorneys say the source code is needed to determine whether breath tests administered by the Tucson Police Department and the University of Arizona Police Department are accurate and reliable. (The Pima County Sheriff’s Department and the Arizona Department of Public Safety take blood samples.)
The defense attorneys maintain the issue is a constitutional one; defendants have the right to cross-examine and confront their accusers.
Prosecutors have maintained that experts have other ways to determine if the test results are reliable. They also say the source code is a trade secret and shouldn’t be disclosed.
On Friday, Judge Deborah Bernini ruled that the source code is not a trade secret. She noted that the president of CMI, the company that manufactures the machine, testified that the Intoxilyzer 8000 is not patented, and neither is its copyright on the source code.
Bernini ordered CMI to turn over the source code to attorney James Nesci, who is the lead counsel on all of the cases…
City Court judges have split on the issue, with six siding with the defense attorneys, two siding with prosecutors and one not yet issuing a ruling. Justice Court judges have refrained from issuing any rulings, preferring to wait for Bernini to issue her ruling.
In the City Court cases, the judges not only ruled that the defense attorneys should have been given the source code, but they prohibited prosecutors from using breath-test results against about 170 defendants…
"An inaccurate machine is of no benefit to anyone," Nesci said. "Inaccurate results could mean imprisonment for innocent people and exoneration for the guilty. People have the right to know how these machines get their results."
Pima County attorneys aren’t the only ones battling with CMI, the producer of the Intoxilyzer 8000, Nesci said.
Law enforcement officers across Arizona began using the Intoxilyzer 8000 last year, Nesci said.
Police like the device because it weighs half of what its predecessor weighs and can be powered by a squad car’s cigarette lighter, Nesci said.
Six other states have been battling CMI over the source code — Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey.
"CMI has currently racked up over $1.2 million (in fines) in a civil contempt order for not disclosing the source code" in Florida, Nesci said.
The machine also failed to meet precision and accuracy testing in Tennessee, so law-enforcement agencies there are prohibited from using it, Nesci said…
Are the days of secret trial by machine finally nearing an end?
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