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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 omnicronx on 8/15/2007 1:53:02 PM , Rating: 0
The police don't give you a breathalyser for no reason, he was probably driving iradically or was stumbling around when he was asked to walk in a straight line.
DUI is one case were essentially the person is proven guilty before entering the courthouse, in most cases its essentially a formality (not saying all). Breathalyzers work, so unless this guy has a good reason(or excuse) why he was above the legal limit, i do not see why he should even be allowed to look at the source code.

I would be interested in knowing how far over the limit he was, if hes within 0.01 points i think he has a case, otherwise he should rot in jail.

Otherwise why use these Breathalyzers in the first place, one case in which someone is found guilty by use of a Breathalyzer should be enough precedent to lock this guy up.

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.

"So, I think the same thing of the music industry. They can't say that they're losing money, you know what I'm saying. They just probably don't have the same surplus that they had." -- Wu-Tang Clan founder RZA

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