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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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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
quote:
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.


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