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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 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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