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"Open government" under fire as government suppliers claim trade secrets

Facing painful accusations of drunk driving, Dale Lee Underdahl of Minnesota challenged the accuracy of the Intoxilyzer 5000EN breathalyzer used against him, and demanded to see the source code used in the device.

The claim launched debates and a lawsuit that escalated all the way to the Minnesota Supreme Court. The device’s manufacturer, CMI, Inc. of Kentucky,claimed the source code was proprietary, copyrighted and refused to comply.  To that end, CMI attempted to block the source code’s release by filing a writ of prohibition, which was denied by the Minnesota Supreme Court, who said the writ is “an extraordinary remedy and is only used in extraordinary cases.”

The State of Minnesota specifically commissioned the Intoxilyzer 5000EN model and “all right, title, and interest in all copyrightable material” created “will be the property of the state,” according to the state’s original bid proposal. Furthermore, the proposal also said CMI must provide the necessary information to “attorneys representing individuals charged with crimes in which a test with the proposed instrument is part of the evidence,” which according to CNet, “seems to include source code.”

On July 26, the Minnesota Supreme Court ruled in Underdahl’s favor, assuring the discoverability of the devices source code and affirming his right to its examination. “The problem is, the manufacturer of the thing thinks they can hold it back and not tell anybody how it works. For all we know, it's a random number generator,” said Underdahl’s attorney, Jeffrey Sheridan.

The Minnesota Department of Public Safety has expressed reluctance to forcibly acquire the source code, and according to a department spokesman, is still considering its response. The department thinks a lawsuit is unnecessary as the contract stipulates CMI’s cooperation with court orders.

The “source code defense” has been used in a number of other states with mixed success. Manufacturers, in the interest of guarding their trade secrets, have rigorously fought against court-ordered scrutiny. In one instance, judges in Florida’s Seminole County threw out hundreds of cases involving breath tests because the manufacturer would not disclose their breathalyzer's source code. However, in another instance a group of more than 150 suspects, in Florida’s Sarasota County, were granted access to the machines’ source code, with the judges citing it was “material to their theory of defense in [their] cases.”

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Is he kidding?
By vortmax on 8/15/2007 12:38:09 PM , Rating: 1
“The problem is, the manufacturer of the thing thinks they can hold it back and not tell anybody how it works. For all we know, it's a random number generator,” said Underdahl’s attorney, Jeffrey Sheridan.

Don't the manufacturers of these devices have any sort of formalized testing procedure? Surely they aren't generating random numbers since that would become very obvious very quickly.

Some guy gets arrested for drunk driving and now he's looking for a loop-hole to get off. Talk about side-stepping responsibility.

This lawsuit is a joke.

RE: Is he kidding?
By mal1 on 8/15/2007 12:49:06 PM , Rating: 4
This isn't a lawsuit, it's a criminal case. Whatever happened to innocent until proven guilty?

RE: Is he kidding?
By DirthNader on 8/15/2007 12:53:02 PM , Rating: 3
They hate us for our freedumbs.

Amazing how quickly the sheeple bow to the government. Our founders would be disgusted.

RE: Is he kidding?
By Misty Dingos on 8/15/2007 1:21:51 PM , Rating: 4
Freedums and sheeple. You aren't going to copyright those are you? And I agree with you the founding fathers would be baffled, disgusted, and horrified. I think one of them might be heard to say. "My friends fought bleed and died for these weak knee simpletons?"

Give us liberty or give us cameras on every street corner. You can have my freedoms when you pry them from my lawyer’s cold clammy claw, I mean hand. Don’t tread on me! Well unless you have a valid court order.

RE: Is he kidding?
By Christopher1 on 8/16/07, Rating: -1
RE: Is he kidding?
By TomZ on 8/16/2007 2:30:48 PM , Rating: 3
I hope you seek out and receive the help you need.

RE: Is he kidding?
By mal1 on 8/15/2007 12:56:12 PM , Rating: 2
Let me rephrase that. This is a lawsuit stemming from a criminal case, not some frivolous lawsuit from someone trying to make a quick buck. Everyone deserves the right to defend themselves. If a company wants to do business with the public sector, then they need to do things in a transparent way. This is not some top secret weapon critical to national security. Plus is sounds like the state owns the rights to the code.

RE: Is he kidding?
By OddTSi on 8/15/2007 3:14:16 PM , Rating: 2
Why would you need the source code to determine if the device is accurate? As the original poster said, this is just a drunk driver trying to get off through a loophole and a liberal activist judge is obliging him.

RE: Is he kidding?
By TomZ on 8/15/2007 3:22:00 PM , Rating: 1
Pletty clever how you make lots of assumptions and ignore the reality of the situation in order to quickly skip to a conclusion that supports your political viewpoint.

Scroll down a bit, your question's been asked and answered in some of the comments below.

The "liberal activist judge" part is real subtle. :o)

RE: Is he kidding?
By rsmech on 8/15/2007 9:46:13 PM , Rating: 2
I certainly hope I never appear before a judge with such preconceived notions. If any evidence can be used according to the law to prove innocence let it be. In a court of law the defense has it's chance to prove otherwise. The only loophole is the company not providing according to contract what the state owns & them letting him off, not the judge.

RE: Is he kidding?
By 16nm on 8/15/2007 1:09:50 PM , Rating: 3
Whatever happened to innocent until proven guilty?

Wasn't it amended in the Patriot Act? LOL.

RE: Is he kidding?
By lompocus on 8/15/07, Rating: 0
RE: Is he kidding?
By TomZ on 8/15/2007 1:26:55 PM , Rating: 2
The U.S. also has made a lot of mistakes in its history, so let's not get too carried away with that line of reasoning. I'm also a proud, patriotic American, but I also recognize that we're not perfect.

RE: Is he kidding?
By onelittleindian on 8/15/07, Rating: 0
RE: Is he kidding?
By TomZ on 8/15/2007 2:22:35 PM , Rating: 3
"Better" depends on your value system. For example, to a pacifist, a country with no military or history of any military agression might be considered to have the better record. After all, we all know there is only one nation in history that has used nuclear weapons against innocent civilians. Some would say that action was inherently immoral and militarily unnecessary.

RE: Is he kidding?
By rcc on 8/15/2007 2:49:45 PM , Rating: 1
"Better" depends on your value system

Indeed it does, he stated his.

Can you provide the name of a country with no military history? Ever?

As far as innocent civilians go, that's another call on your value system. And, leads to a whole 'nother discussion.

RE: Is he kidding?
By TomZ on 8/15/2007 3:04:27 PM , Rating: 2
Yes, I can, but to be fair to the others, I won't try to hijack this thread much more off-topic.

RE: Is he kidding?
By rsmech on 8/15/2007 9:26:44 PM , Rating: 4
For example, to a pacifist, a country with no military or history of any military agression might be considered

Unless a pacifist countries morals weren't so high as to not let a civil & moral nation such as the United States come to defend their freedoms for them.

RE: Is he kidding?
By TomZ on 8/16/2007 2:20:19 PM , Rating: 2
I never said that pure pacifism is practical, did I?

RE: Is he kidding?
By buckao on 8/16/2007 12:16:52 PM , Rating: 2
Dropping bombs on civilians during WWII was standard operating procedure for every country involved. Bomb technology was relatively crude at the time, and bomb-guidance was rudimentary. We didn't have laser-guided smart bombs 60 yrs ago. Add to that the fact that our enemies put military targets right among the civilian population, and you can see it was inevitable that many innocent civilians would be killed. What were we supposed to do, not attack the targets? We were fighting for the survival of the free world. If we hadn't killed all those civilians, we would all likely be slaves to the Nazi's or the Japanese right now.

Oh, and any country that doesn't have a military won't be a country for very long. Someone will come and take them over. It's just how things work in the real world.

RE: Is he kidding?
By TomZ on 8/16/2007 2:28:15 PM , Rating: 2
Except that the target locations for the nuclear bombs used against Japan were not selected on the two cities being military targets at all. In addition, Japan had basically lost in the Pacific already and were being actively attacked by Russia, while Germany had already surrendered months earlier in Europe. Go study your history.

RE: Is he kidding?
By just4U on 8/17/2007 12:38:10 AM , Rating: 2
I don't understand what your saying. According to George W the US and Japan have enjoyed a 150 years of peace. What targeted locations? What's going on here?


RE: Is he kidding?
By createdAmonster on 8/16/2007 6:25:20 PM , Rating: 2
As far as being slaves to the NAZIs and the Japanese, that is quite a piece of conjecture.
As for the rest, I would agree with you. However the atrocities perpetrated by the different factions have no moral justification; war and morals don't mix. Strategically speaking, they may be sound, but not morally.

People do what they think they have to do, but to give a moral justification for the killing of innocent civilians is preposterous to say the least.
Especially, if people speak of being righteous and and god-fearing.

RE: Is he kidding?
By OrSin on 8/15/2007 3:35:26 PM , Rating: 1
Better record then who? Let run down some of the major flaws.
Genocide of the America Indian
Legalize slavery 70 years after the rest of the world.
Interment camps in WW2
Women could not vote 30-40 years after Europe gave in.
Legal lnyching until 1962.

And these are the big one. We are not better then most we just spin it better.

RE: Is he kidding?
By rsmech on 8/15/2007 10:13:34 PM , Rating: 4
This is off topic, but too absurd to stand.

Genocide of the America Indian

This so called genocide has been a part of many nations histories. Natural migration throughout history has displace native inhabitants by conquering and or enslaving. Almost every major culture or empire throughout history is guilty of the same. This neither qualifies nor disqualifies us against our equals.

Legalize slavery 70 years after the rest of the world.

Maybe we had a later history of it, but we certainly didn't have the longest history of it. It's obvious which caused greater suffering. Those who supported it for centuries.

Interment camps in WW2

At least our ignorance wasn't as brutal as the German, Russian, Japanese, Vietnamese, ect. Who was more civil in their ignorance?

I can't say we are perfect but I think you are the one spinning it. Finish your history studies to get a bigger better picture. There is no perfection in a nations history but you are certainly blind to many other evils in history.

RE: Is he kidding?
By DARGH on 8/15/07, Rating: 0
RE: Is he kidding?
By Darkskypoet on 8/16/2007 8:19:10 PM , Rating: 2
Umm... Sorry.. but your nation played a role in many of those... Hitler broke his face on the Soviets... Also, It was the U.S unwillingness to share the most powerful weapon at the time (arguably of all time) with an Ally (Soviet) that started the Discourse of the cold war... The U.S Also did not bring down the Soviet, the Soviet decided not to be a super power anymore. If anyone brought down the soviet, it was the politburo.

Also... Brits fought and won in 1812, lost to France and the colonies in their war of independence. So once.. sure.. twice? when?

As well, we speak English globally (for now) because the United States was one of the only major nations to not have their economy completely destroyed in WW2. And as such had the economic muscle to revamp the entire global system by rebuilding certain markets so as to not induce a recession in their domestic economy.

Furthermore, English, as much as I like the language, is like 'the borg' it tends to assimilate any word it wants and just simply doesn't stop growing. In the Soviet sphere of influence they managed to push Russian as the language of choice as that was one of the other major (newly) industrialized economies that sprung from WW2.

As china evolves don't be too surprised to see Chinese rise in prevalence on the global stage.

Back on topic; Say all you want that it was established in the founding of your nation, remember that "All men are created equal" was too. So said the slave owners at the time.

Funny thing is, the U.S still does not have equal rights legislation for Women. So... really please try and understand this lack of respect for the coveted written constitution you hold so dear is oft times not quite worth the paper it is written upon.

I too believe your nations founders would be quite pi$$ed off at the current state of events... Even though it has been going on for quite some time.

RE: Is he kidding?
By Slaimus on 8/15/2007 4:00:24 PM , Rating: 3

RE: Is he kidding?
By NaughtyGeek on 8/15/2007 4:29:25 PM , Rating: 2
Wasn't it amended in the Patriot Act? LOL.

That's the funniest thing I've read in a while. Perhaps there's hope for the sheeple yet. ;)

RE: Is he kidding?
By rcc on 8/15/2007 1:21:43 PM , Rating: 2
He has been tested and found wanting, or drunk.

So the question is, is the procedure and equipment used accurate.

Most of use assume that the breathalyzer is accurate, but who knows. Not that spending time and money analyzing source code is going to help.

Then again, if the conspiracy theorists are correct, perhaps they will find a routine to automatically indicate a "drunken" condition if the operator performs a specific pattern. Usable for potential perps that piss off the gendarmes.

RE: Is he kidding?
By dever on 8/15/2007 2:14:56 PM , Rating: 2
There's probably a few breathalizer Easter Eggs for the younger, more nimble thumbed cops.

RE: Is he kidding?
By cbo on 8/15/2007 1:46:02 PM , Rating: 3
In addition to that one could argue that the machine is an accuser or a witness of sorts. And subject to cross examination and defense scrutiny, including it source code.
Just like an eyewitness ability to recollect event of the night in question.
This thing might just be found to be inaccurate or inconsistent and be deemed in inadmissible like other machinery in a court of law.

Also this guy's lawyer is a beast.

RE: Is he kidding?
By TomZ on 8/15/2007 1:56:07 PM , Rating: 2
Also this guy's lawyer is a beast.

...and exactly the kind of lawyer you want on your side if you get into trouble! Playing some games is all part of it.

RE: Is he kidding?
By omnicronx on 8/15/07, Rating: 0
RE: Is he kidding?
By TomZ on 8/15/2007 2:13:53 PM , Rating: 2
I don't understand or agree with your unconditional trust in these types of devices. Check out TomCoreolis' post below, which adds some more interesting details.

As an engineer myself involved in electronics and software, I see the kinds of mistakes and problems that do slip by from time to time, even with good testing. And if you're going to throw someone in jail based on evidence from a device like this, you'd better be damn sure it's right.

In addition, what's the harm done in letting the defense see the source code? Clearly the guy is not planning to start a breathlyzer-development company. If they don't find a problem, then the case proceeds. If by chance they do, then the case gets thrown out, and the publicity of this case may force some positive process changes for how these devices are developed and/or used. It's all good to me.

RE: Is he kidding?
By omnicronx on 8/15/2007 2:40:46 PM , Rating: 4
you make some extremely valid points. You should have a right to see the sourcecode as there is no harm in doing so.

I work for a pharmaceutical company, and someone at work just informed me of something funny when it comes to reading your blood alcohol level. Heres a some quotes from a site that explains it best.
Body Temperature: The widely used blood-to-air partition ratio of 2100 is based on a normal body temperature of 98.6°F. A higher body temperature of the individual will overestimate the actual BAC because of the higher volatility (or vapor pressure) of liquids like alcohol at a higher temperature. An elevation in body temperature of 1°C (1.8°F) results in a 7% higher value in the result since the air in the lungs will contain an artificially higher amount of evaporated alcohol. Therefore, a person with a body temperature of 100.4°F, and with an actual blood alcohol of 0.0935%, will register a value of 0.10% by the breath test. Be careful if you have a cold or the flu.
Cellular Composition Of Blood: Blood contains suspended cells (e.g. red and white cells) and proteins, and is therefore only a partial liquid. The partition ratio of 2100 is based on an average cell volume 47%. Some of this cell volume is tissue, and at 47% cell volume, 81.5% of the blood volume is liquid in which the alcohol is actually dissolved. A person with a lower cell volume will have a falsely elevated blood alcohol level based on a breath test since the amount of alcohol in 2100ml of lung breath will be dissolved in a slightly higher amount of liquid, and hence have a lower concentration. Cell volume values range from 42% to 52% in males, and 37% to 47% in females. This variability will only have a small impact on BAC (ranging from -2% to +5%) so don't rely on it in court.
The ratio of breath alcohol to blood alcohol is 2100 to 1 (and called the partition ratio), so the alcohol content of 2100 milliliters of exhaled air will be the same as for 1 milliliter of blood. The maths are simple from there and leads to blood alcohol readings expressed as a percentage of alcohol in the blood.The partition ratio can vary between 1700 and 2400 depending upon the individual and local environmental conditions, leading to a breath analysis reporting either a higher or lower calculated blood alchol reading.

with all those variables i would demand the source code too, weird how a few minutes can change your opinion =X

RE: Is he kidding?
By omnicronx on 8/15/2007 2:43:37 PM , Rating: 2
once again though, if his BAC was way over the limit, what are the chances even with these variables that it is wrong.

RE: Is he kidding?
By arazok on 8/15/2007 3:06:27 PM , Rating: 2
I got pulled over for a test leaving a bar once (only had one beer). The cop needed to know how long ago my last drink was, as it could impact the results of the test. Apparently, if you were stone sober, shotgun a single beer and immediately took a test, you might blow over.

I read a newspaper report about a guy who got pulled over for DUI. While waiting for the cop to get the test, he got out and started chugging mouthwash. He blew over, but beat the charge because the Judge said he couldn't prove if it was the mouthwash, or from drinking beforehand.

RE: Is he kidding?
By rcc on 8/15/2007 5:10:50 PM , Rating: 1
Should have fined him for stupidity and obstruction.

RE: Is he kidding?
By dever on 8/15/2007 2:20:31 PM , Rating: 2
You could also put your trust in dna testing... like the mother who had a paternity test for her child and almost lost her kid because she was determined not to be the mother... until after a couple of years it was determined that she was a chimera.

RE: Is he kidding?
By Spyvie on 8/15/2007 3:20:05 PM , Rating: 2
LOL - Let me guess the "chimera" was your x wife?

RE: Is he kidding?
By cbo on 8/15/2007 5:59:15 PM , Rating: 2
CSI fan are we?

RE: Is he kidding?
By FITCamaro on 8/15/2007 2:31:49 PM , Rating: 2
I'm with you. Police don't just pull you over for DUI for the hell of it. They'll come up with another charge if they're gonna do that.

If his measured BAC was extremely close to the legal limit, I think he has the right to question it. If the legal limit is .07 and he was at .12, no.

Personally though I would like to know how they measure your blood alcohol level just from your breath. If I take a swig of rum right before I take the test, I have a feeling I'd register a high BAC. Does that mean I'm drunk though?

RE: Is he kidding?
By SiliconAddict on 8/16/2007 12:55:26 AM , Rating: 3
Um actually they do. You obviously have never run across a sobriety checkpoint before. That being said they are rare in MN. I've only run across one here.

RE: Is he kidding?
By cbo on 8/15/2007 5:53:24 PM , Rating: 2
You have never been in the five borough of NYC during labor day or the fourth. The Police give random testing on those days.

RE: Is he kidding?
By JonnyDough on 8/15/07, Rating: 0
RE: Is he kidding?
By SiliconAddict on 8/16/2007 1:11:17 AM , Rating: 1
Have you ever even READ the constitution? What people consider their "rights" now a days aren't laid out anywhere in those hallowed pages. I mean really...the right to source code goes beyond retarded. What next? The right to listen in on scrambled police communications because its my god given right.
I consider myself a liberal but for god sake there ARE limits. Its called picking your battles. If people want to figh over something get bent out of shape over the Patriot Act. This? This is someone who honestly thinks he wasn't drunk when he was. MN's BAC is .08. It doesn't take much ti hit .08 and you sure don't feel very tipsy when you hit it.

PS- There are breathalyzers that are certified by NHTSA and the US DOT who have characteristics of ±0.01%BAC. This guy should be going after anything its that. .01 could mean the difference between being drunk and not. He's probably not doing this route because its probably been shot down before.

RE: Is he kidding?
By tjr508 on 8/16/2007 4:34:22 PM , Rating: 2
0.01% is the accuracy of the measurement of the air, not of the blood. Conditions such as body temp, composition, etc make it impossible to get any sort of real air to blood translation. Boose on your breath doesn't make you drunk.

The most interesting defense is that if the valve seperating your throat from your stomach isn't closing properly (very very common), then the results can be WAY off.

RE: Is he kidding?
By TomZ on 8/15/2007 12:56:43 PM , Rating: 2
If someone is already innocent, but the device is faulty - however remote that possibility may seem - then justice has not been served and innocent people get punished.

Remember, the purpose of the trial is to determine guilt or innocence - that is unknown in the eyes of the court. Although obviously you've already decided he's guilty.

RE: Is he kidding?
By vortmax on 8/15/07, Rating: -1
RE: Is he kidding?
By TomZ on 8/15/2007 1:10:43 PM , Rating: 3
I haven't decided anything, except that IMO the defendent's right to examine the evidence presented against him in a criminal case trumps the claim of CMI that the code is a trade secret, especially since the contract seems to clearly state they don't own any rights to the source code.

RE: Is he kidding?
By vortmax on 8/15/07, Rating: 0
RE: Is he kidding?
By TomCorelis on 8/15/2007 1:49:50 PM , Rating: 4
One thing I didn't include was how the certification process for these devices work: states do not certify every single release of the source code, and manufacturers will often release bug patches or other changes directly to the breathalyzers with little oversight. (Same thing with the voting machines.) It's possible this man was scanned with one running uncertified code.

If the machine's running uncertified code, and the manufacturers' testing processes are anything short of rigorous, I can see a very valid legal defense strategy in challenging the machines themselves.

RE: Is he kidding?
By Gneisenau on 8/15/2007 2:36:18 PM , Rating: 2
As a person who uses test equipment everyday and analyzers, we have to have them sent to a lab at specific intervals and tested to insure they read correctly. We receive a report back, traceable back to NIST that proves that every piece of equipment used to test our gear and test the tester's gear is accurate. I would be shocked if they didn't have to do something similar. Even if it's the use of a certified test gas or something like that.
Anyway it would be easy to have the machine tested to prove or disprove it's accuracy without the source code.
In my opinion, they are only asking for it, not to prove his innocence, but because they know that the case can be thrown out of court if the company refuses to comply. And if so, I think that is an abuse of the system.

RE: Is he kidding?
By rcc on 8/15/2007 2:45:57 PM , Rating: 1
In which case he really needs the firmware from that exact unit.

RE: Is he kidding?
By TomZ on 8/15/2007 1:51:46 PM , Rating: 3
If you know anything about software, you should know that "in use for years and years" does not prove the lack of existence of a bug. Maybe they released a software update the week before that had a bug, for example? Maybe there's a bug in the software that's been in there all the time, that only crops up in certain considitions? Who knows.

I agree with you to a certain extent, that from a practical perspective, there is probably a 1 in 10000 chance of them finding a bug that gets this guy's case thrown out. And also I recognize that the guy's attorney is also trying to get the State to jump through all these extra hoops with the hope of them making a mistake that causes the case to be dismissed. But still, the defendent has a clear right to try to prove his innocence, and he cannot be deprived of that right.

If anything, you should be faulting the State. They should have been able to anticipate these types of legal challenges, and be ready will all the requested information. If they had been better prepared, they could just quickly provide the information, the defense could examine it, and the case could quickly proceed.

RE: Is he kidding?
By vortmax on 8/15/2007 1:59:15 PM , Rating: 2
You'd think they could test the actual device that was used on him to be sure it worked properly. As long as it wasn't 'patched' or something since then.

I have no problem with someone trying to prove their innocence, that's their right. I do have a problem with someone trying anything to side-step the responsibility of their actions while many taxpayer $'s are being wasted in the process.

RE: Is he kidding?
By TomZ on 8/15/2007 2:05:41 PM , Rating: 2
Agreed, but taxpayer dollars were wasted mainly because the State was not in control of the information they had rights to, and which they should have anticipated needing in a case like this, especially considering that this type of defense has been used elsewhere prior.

RE: Is he kidding?
By FastLaneTX on 8/15/2007 9:08:26 PM , Rating: 2
There is no way of knowing whether your tests of the same device will produce the same result, because there could be errors in the device that are only triggered under certain conditions. Just look at the studies of the Diebold et al source code in California; they've got all kinds of problems that don't show up in test mode, or even necessarily in elections, unless one does specific things to take advantage of them. What if there's a certain sequence of buttons on the breathalyzer that cause it to boost the reading 0.05 so the cops can put troublemakers in jail even when they're not drunk?

RE: Is he kidding?
By Houdani on 8/15/2007 1:53:45 PM , Rating: 5
I hate drunk drivers as much as the next guy, but it's a fair argument to question the accuracy of a device which is being used to incriminate you.

It used to be that speed radars would clock a tree at 85mph or a house at 30mph, yet these same devices were standard issue and used for evidence in traffic tickets. It was people questioning the radar's accuracy that prompted the manufacturers to hunker down and make a better product.

So, just because a device is widely used and commonly accepted doesn't exclude it from scrutiny.

On a personal note, I hope that the device stands up to the scrutiny and closes the door on this defense mechanism.

RE: Is he kidding?
By Choppedliver on 8/15/2007 1:28:51 PM , Rating: 2
And what would be the problem with that?

The law says, he is innocent until proven guilty. So yes, as of now, he is innocent, until proven otherwise.

RE: Is he kidding?
By vortmax on 8/15/2007 1:30:31 PM , Rating: 2
Read my post above yours...

RE: Is he kidding?
By kmmatney on 8/15/2007 2:51:15 PM , Rating: 2
I don't know if "innocent until proven guilty" applies to traffic citations. When you get a traffic violation you are pretty much guilty as soon as you receive the ticket. You can fight the charge to exonorate yourself, but you are more trying to prove yourself innocent from an already guilty standpoint.

RE: Is he kidding?
By roastmules on 8/15/2007 4:39:15 PM , Rating: 2
I don't know if "innocent until proven guilty" applies to traffic citations. When you get a traffic violation you are pretty much guilty as soon as you receive the ticket. You can fight the charge to exonorate yourself, but you are more trying to prove yourself innocent from an already guilty standpoint.

Actually, it does apply. But, in most cases, your desire to prove innocence is less than your desire to "make it go away". If you get a $90 ticket for a traffic violation, you can fight it, or you can simply pay $90, and either plead no contest, or plead guilty. It is often cheaper to pay the fine, than take time off work, go to court, and still probably lose.

In a DD, DUI, DWI case, it can cost you as much as $20-$50,000 over the rest of your life. It's worth it to fight tooth and nail, especially if you are close. Or, don't get an attorney, and throw yourself at the mercy of the court. A friend of mine with no criminal record, no bad driving record, etc, got off fairly lightly by asking for mercy of the court, and pleading guilty. (No jail, small fine, short suspension of license, short probation) Now, it's a permanant stain on them, only one stain, but a biggie.

I know of very higly paid people who believe that a handicapped space is their personal spot. They simply pay the ticket. In this case, there's no time, only money. Their hourly wages are too high to keep them from parking there.
DUI is a "hard constraint". A red-light camera ticket or a regular parking ticket is a "soft constraint". Depending on your economic level, other fines are in-between, such as a $250 handicapped parking space fine, or a loading dock zone fine.

RE: Is he kidding?
By iNGEN on 8/15/2007 1:43:49 PM , Rating: 2
No vortmax, TomZ is affording the defendant exactly the regard forced upon all agents of government by free men, presumption of innocence.

I suspect TomZ's regard for the defendant is not based on a belief in the defendant's innocence, but born of love for liberty.

RE: Is he kidding?
By TomZ on 8/15/2007 2:02:36 PM , Rating: 2
Exactly, and also to be clear, I hate drunk drivers as much as the next guy, but we have to be careful to protect our freedoms from government that will almost certainly abuse its power if left unchecked.

RE: Is he kidding?
By omnicronx on 8/15/2007 2:16:59 PM , Rating: 2
I love freedom as much as the next guy, but if this stands its only a starting point of people taking advantage of the system when it comes to any arrest with the main evidence being technology. Whats to stop someone from now saying.
'i was not speeding, the code in the radar gun must be wrong'
It only opens the door to defenses like this, and the courts will have no choice but to start drop cases every time something like this arises, as cases could be drained on for months.

governments should start certifying technologies that are used as main evidence for peoples arrests. There should be a undebatable line of yes or no. Especially with a case like this, when you are usually tested for blood alcohol upon arrest, and again when you are brought to the station.
Either the technology works, or it doesnt, it really is not that hard.

RE: Is he kidding?
By TomZ on 8/15/2007 2:28:06 PM , Rating: 2
No, I disagree. If defenses like this are successful, then it means that the devices are not as accurate as they should be and/or there is not a sufficient system in place to guarantee their accuracy. Therefore, the reaction on the part of the government, police, and prosecutors will be to improve the devices and/or the validation systems. I think you'll agree with me that this is a good outcome, right? The alternative that you suggest, that most DUI prosecutions would fail because of this, seems very, very unlikely.

RE: Is he kidding?
By TomZ on 8/15/2007 2:31:28 PM , Rating: 2
Either the technology works, or it doesnt, it really is not that hard.

Please give me one example of another non-trivial technology product that "either works or doesn't"?

For example, wouldn't you agree that a consumer MP3 player is probably no more complex than a brethalyzer? With no moving parts and all, it should never fail, right? You probably see where I'm going with this...

RE: Is he kidding?
By Gneisenau on 8/15/2007 2:51:28 PM , Rating: 2
True, the analyzer can break, but it can also be sent to a certified lab and tested.

My questions is who on the jury is going to have any idea what the defense is talking about if they start jabbering about source code? How many people here could follow someone's conversation about a C program or Assembly... You would have to think that the odds of everyone here understanding what they were talking about is several orders of Magnitude above that of the general puplic.

RE: Is he kidding?
By TomZ on 8/15/2007 3:02:49 PM , Rating: 2
I think that would be the point in having expert witnesses, e.g., licensed professional engineers with experience in that type of product.

RE: Is he kidding?
By omnicronx on 8/15/2007 3:16:13 PM , Rating: 2
that sounds good in theory, but what makes you think the jury will understand what the expert witnesses / licensed professional engineers are saying? The jury is suppose to take what you are saying into account, but in a real life situation would it actually work out in that way? Its just like the prosecutor saying something pertinent to the case, and then have it objected too and stricken from the record. The jury is not suppose to listen, but it will still linger in the back of their minds. If the jury does not know what the experts are talking about, they will probably use their best judgment to make a decision.

RE: Is he kidding?
By TomZ on 8/15/2007 3:26:07 PM , Rating: 2
I'm not an attorney, but I think it would work something like this. The expert looks at the source code, and the testifies to the jury that yes, there is a flaw which could cause the BAC reading to be off. One purpose of the expert is therefore to interpret the technical situation and give a plain-english conclusion that the jury can understand. Plus of course the expert is under oath and also staking his/her reputation on giving an honest assessment.

RE: Is he kidding?
By Gneisenau on 8/15/2007 3:46:21 PM , Rating: 2
I can agree with that if the proscution doesn't have experts saying it has no bugs.
The problem with experts is when you have 1000 experts say one thing and 5 say another, you only get to bring 1 or 2 each to court. That makes it seem like the experts are split when in fact they are not. Juries should not decide technical matters IMO. They should decide if they guy broke the law or not. Not the accuracy of some device they don't comprehend. The accuracy of the device needs to be handled in another forum.

RE: Is he kidding?
By iNGEN on 8/15/2007 1:38:29 PM , Rating: 2
Be careful TomZ. You may gather much scorn for saying things like that.

RE: Is he kidding?
By bpurkapi on 8/15/2007 3:36:46 PM , Rating: 2
No he ain't kidding. I would never trust some device's accuracy to be spot on. Most results from breathalysers are oddities anyway, functioning in a range of possible accurate readings. If I'm being accused and know that I did not drink over the legal amount you can be damn sure I'm gonna make sure the device is accurate.
Also this is good for the whole country, these breathalysers could in fact(shock!) be flawed and nobody would know. I much prefer an accurate device over some slot machine type of device that randomly posts numbers at a set rate so the cops meet their monthly quotas and stay paid.
Manufactures probably don't have a standardized testing procedure, that is why the man is asking to look at the source code! People get arrested for drunk driving when they are not drunk all the time.
The field sobriety tests are a crock of crap: stand on one foot and count, say the ABC's backwards. The only test that really works is when they make you track the red dot while they examine your eyes. But even this test only can detect people who are way over the legal limit.
The legal limit in most states is .08 and is about equal to 2 alcoholic beverages whether that is a beer, a glass of wine, or a shot. Some people can still function perfectly after 4 drinks others can't after 1 drink. This is the problem with the field sobriety tests and why they make the test so ridiculous.
Most people can't say the ABC's backwards even sober. This test is used to put you in an uncomfortable situation where the police officer can start to interview you. He will ask if you had anything to drink, where were you coming from, etc.
In situations such as these the way to deal with an officer is to simply say "Am I being accessed of a crime? If so I want to communicate with my lawyer." Police are now confronted with the fact that they cannot continue the interview unless they call a judge and get clearance, this just buys you time to gather your bearings and protects you from being coerced into saying anything potentially incriminating.

RE: Is he kidding?
By Nekrik on 8/15/2007 4:24:12 PM , Rating: 2
You make some pretty good points here, Im curious why you were rated down. There are many problems with how DUI cases are handled. You pointed out a pretty big point in how different people have different tolerences. Some people can function perfectly well after 3 or 4 drinks, but they'll blow over the limit on a device. Others (such as those alergic to alchohol) will be completely drunk on single beer, but blow within the legal limit. I duscussed this with a cop friend and they admitted it was a problem, but right now it's the best sytem they have. Antoher issue is that these machines can be manipulated by the operators, and they take advantage of this, one thing they do is to get the suspect to blow a second time if the first reading doesn't qualify for a DUI conviction. Blowing a second time can result in a reading several points higher than the first, pushing a .06 to a .o8 (of course they usually have a bogus reason for why a second test is necessary and the suspects don't know they legally don't have to blow again and are unawar that this is a ploy).

RE: Is he kidding?
By JonB on 8/15/2007 6:21:02 PM , Rating: 2
Probably downgraded by the same people who react in horror when I tell them "If you are stopped for any traffic violation and the Police ask 'May we search your vehicle' you should politely say 'NO'." If they have a valid reason, they will search anyway but I see no reason to blindly allow indiscriminate searching.

I told both my children to do that when they were driving as teenagers. My son was stopped twice, once when I was two cars back from him. His only "crime" was that there were five other teenagers in the car, dressed for a concert. When asked by the officers if they could search, he did tell them No and they didn't press it. They looked through the windows at each child but didn't see anything to give them Due Cause for a search. The reason they gave for pulling the car over was that they had strayed across into the other lane. That was pure fiction since I was right behind them and Police had to pass me to pull my son over.

I have personally witnessed other teenage drivers pulled over for no reason other than there were two or more of them in a car. That is profiling and I don't like it. I know that other groups are similarly profiled (Blacks, Hispanics, hot blondes, etc..).

RE: Is he kidding?
By Gneisenau on 8/16/2007 12:09:30 PM , Rating: 2
Even if the got the breathalyzer's analisys tossed, he may still be able to be convicted. I don't know about his state, but mine uses the legal limit as a guarenteed limit. You can still be arrested for DUI for being under that limit if the officer judges you impared by using the other tests.
So tossing the breathalyzer test would only be step one. He would still have to argue he was unimpared.

It may be hard to go with "I wasn't .08, I was only .07 and I can be .09 before my driving ability is affected."

Unless he can make the jury believe the analyzer was shooting blanks completely, he could still be in for a rough ride.

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