Comments for DUI Defendants Beat Charge By Asking for Source Code

DUI Defendants Beat Charge By Asking for Source Code

2005-06-06T14:11:32Z

File this under yet another ridiculous Florida ruling. What the heck is up with Florida they days? There seems to be regular occurences of legal stupidity down there.

Apparently hundreds of cases involving breath-alcohol tests have been thrown out by Seminole County judges in the past five months when the defendant asks to see the source code for the breathalyzers used on them and the test's manufacturer will not disclose the source code.

All four of Seminole County's criminal judges have been using a standard that if a DUI defendant asks for a key piece of information about how the machine works - its software source code, for instance - and the state cannot provide it, the breath test is rejected, the Orlando Sentinel reported Wednesday.

Prosecutors have said they do not know how many drunken drivers have been acquitted as a result. But Gino Feliciani, the misdemeanor division chief in the Seminole County State Attorney's Office, said the conviction rate has dropped to 50 percent or less.

Seminole judges have been following the lead of county Judge Donald Marblestone, who in January ruled that although the information may be a trade secret and controlled by a private contractor, defendants are entitled to it.

"Florida cannot contract away the statutory rights of its citizens," the judge wrote. (See full story)

Let's take this further - suppose you get a speeding ticket and you want to force the radar manufacturer to disclose the exact design specifications of the chip components but they refuse. When they balk, you get a free pass from paying any speeding tickets. While I certainly would enjoy free reign to do 80mph on open stretches of road without periodically paying the state-sponsored "tax on high velocity travel" I think this is the dumbest defense I've ever heard. Next, we'll have defendants asking for the design specifications of digital surveillance cameras to make sure they weren't "hacked" to use as another legal loophole defense. No wonder defense lawyers are the most hated profession.

Comment from Fred on 2005-06-08

2005-06-08T07:06:43Z

People used to take for granted that before the state could imprison you, you could go to court and say "prove it".

The arresting officer has to show up and answer questions. Scientific evidence has to meet the Daubert standards for reliability. The state had better be ready to prove that an instrument really measures what it's supposed to measure within an acceptable margin of error. How do you prove that for a computerized gadget unless *someone* independent has looked at the code? If you can't prove that, then go back to convicting people like you did before breathalyzer machines.

Washington State handled this well: they have the state toxicologist's office certify breathalyzers.

Radar detectors need to be calibrated. Surveillance cameras need to have their records secured from tampering.

All these ideas are a traditional part of criminal law. I get scared when fundamental and long-standing protections get catcalls like "ridiculous" or "stupidity".

Comment from Tom Keating on 2005-06-08

2005-06-08T13:32:07Z

Hey, I have nothing against forcing the breathalyzer companies sending their equipment to an independent lab for verifying they work.

I do have a problem with courts forcing a company to give up trade secrets, i.e. the source code when the source code has NOTHING to do with the case.

There are ways of proving a device's accuracy without looking at the source code. I'm sure they have a way of injecting a gaseous spray with a certain amount of alcohol into the breathalyzer and see if the device measures it accurately.

I believe that a 1000 guilty people should be set free lest one innocent man be found guilty. But I don't believe in ridiculous loopholes.

Comment from JOHN COLLIER on 2007-12-07

2007-12-08T00:41:58Z

IN DUI CASES WHY ARE YOU PROSUME GUILITY AND HAVE TO PROVE YOUR INNOCENT. WHEN EVEN MOST EVERYTHING ELSE YOU ARE INNOCENT UNTIL PROVENT GUILT. THAT SOUND LIKE MADD RUNS THE COUNTY AND NOT THE CONGRESS/PRESIDENT AND THE CONSTITUTION IS JUST A PRICE OF PAPER.

Comment from St Matu on 2008-01-06

2008-01-07T02:30:39Z

Sorry guy I hate to say this and it might not be the best place to get my bitterness but the punishment before and after convicted of DUI is stupid and does not solve any problem. Just because you were pulled over or the Cop never even pull you over but you were arrested, you are presumed guilty and the punishment start right there. DMV suspend the license and you are required to go for expensive classes and other cost even before the case if decided in court. What a Justice. Then just visit the clubs block and see how many people are drinking and in one way or another they will get home. Its ridiculous!!

Comment from Beat Unfair DUI on 2008-11-07

2008-11-08T01:48:51Z

DUI Help - Beat unfair DUI charges with secret tactics and legal loopholes at www.DUIRights.com

Comment from Nick on 2009-05-10

2009-05-10T19:01:31Z

I have been in the situation where I have had a DUI and used the source code defense. I kind of stumbled across this page. Let me tell you something. In the course of my case we uncovered troves of evidence that the Intoxilyzer 5000 (the breathalyzer most states use) was in fact a faulty piece of equipment. We have literally boxes full of documents and evidence that the machine regularly gives false readings and evidence that the law enforcement community knows this. Here in Virginia our department of forensic science openly admitted the machine to be faulty. For those reasons we asked for the source code. We found straight hard law that allows us to examine everything in that machine including the source code for the simple basis that if they don't let me examine those things then it is a violation of my civil rights. Well of course the state wined and cried about what we were doing. We eventually prevailed and got the judge to allow us to view the source code as being essential to my civil liberties. Only to have the Kentucky courts to quash our motions for the source code.
To make an even longer story short the law enforcement communities around the nation know that this machine is crap but they do everything in their power to act like it isn't. Judges are starting to come around and realize that these machines need to be scrutinized. The state has interest in prosecuting people regardless of their rights. DUI is a big money making industry for these states, and the science behind these machines is not proven. There is a vested interest in the state to cover up any problems with these machines on the basis of the fact that many Americans have been tried and prosecuted using these machines. If it ever came out that the machines aren't perfect (which they claimed they were in my case, then we proved to the judge otherwise) there would be a series of devastating lawsuits from individuals who some were unfairly prosecuted and other who were fairly prosecuted that would eventually bankrupt the state.
Really it comes down doing the right thing. We are all guaranteed rights, rights given to us in the form of the Bill of Rights. I have every right to question and examine my accuser regardless of whether it be a human or a machine. Unfortunately that does open the window to scrutinize all law enforcement devices. But then again maybe they need to be scrutinized to make sure that we as citizens are being treated fairly. We shouldn't allow machines to be judge, jury and executioner and sadly in many DUI cases they are.

Sorry about the spelling, I'm kinda in a hurry and trying to get out of here but still finish my thought.

Comment from Jeff Zvolanek on 2009-06-08

2009-06-08T16:53:10Z

Nick,
Where did you get all of your defense information? I currently have a case - we went to trial and the police and people in health and Human services say the Breathalyzer 5000 is 100% perfect (bull crap). I had some pizza and beer ahead of being tested - blew a .174 and it was way high for what I thought I should have tested. They did not have me rinse my mouth out - I chew tobacco and I had not eaten for more than 10 hours - til the slice of cold pizza - which was 40 minutes ahead of my testing. Any advice would be helpful - we are thinking about a Class Action on the source code and maintenance of the machines. The lawyers here locally are all in the system and do not want to upset their gravy train(easy money in DUI suits).
Jeff

Comment from Massachusetts DUI Lawyer on 2009-12-07

2009-12-07T05:01:41Z

Contrary to popular belief, a breathalyzer does not directly measure blood alcohol. Instead, it reads the alcohol in the person’s breath and uses a computer program to extrapolate the breath alcohol reading into a blood alcohol reading. Consequently, it seems to me that this computer program (the “source code”) should be made available to DUI defense lawyers.

It is axiomatic that discovery rules require the disclosure or relevant evidence or that which would lead to such evidence. Here, there can be little dispute that the programming of the breathalyzer is discoverable. This information should be produced, perhaps subject to a protective order, to allow defense experts to determine whether the breathalyzer accurately measures blood alcohol.

Attorney Brian E. Simoneau
Mass. DUI Lawyer