August 10, 2007 2:44 PM PDT
Doubts arise over fate of breathalyzer source code
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If that happens, his client could go free.
As CNET News.com reported earlier this week, the Minnesota Supreme Court ruled late last month that source code for the Intoxilyzer 5000EN, made by a Kentucky-based company called CMI, must be handed to defense attorneys for use in a case involving charges of third-degree DUI against a man named Dale Lee Underdahl. CMI's historic resistance to such demands has led to charges being dropped in at least one case outside of Minnesota.
In this case, the high court concluded that language in the contract between CMI and the state indicates the source code belongs by extension to Minnesota, rejecting the state public safety commissioner's earlier argument that the state was not entitled to the code because of its confidential, copyrighted and proprietary nature. The decision effectively means it's now up to the state to do what it takes to enforce that contract--including suing the company, if necessary.
But as for when the code would be turned over, "I guess the answer is probably never," attorney Jeffrey Sheridan said in a telephone interview Friday. That's because state officials, he added, "haven't given me any indication that the manufacturer has changed its mind."
It remains unclear what steps Minnesota officials plan to take, as representatives did not immediately respond to requests for comment. CMI also did not return calls for comment on Friday.
If August 17 comes and goes without the source code in his hands, Sheridan said he will request what is known as a sanctions hearing, which would likely occur within 30 days of that deadline. At that hearing, he would ask the judge to throw out any evidence the state had obtained using the device in question, which would likely prompt dismissal of at least one charge--that his client was driving with a blood alcohol concentration above the legal limit of .08.
That occurrence could have a ripple effect because the same device was used to administer about 38,000 tests in Minnesota last year, Sheridan suggested. He said he believes the state officials "know what's at stake, and they would happily give (the source code) to me if they have it to give."
Other breathalyzer makers already make their source code more readily available, perhaps in some cases in an attempt to gain a competitive edge, according to Sheridan. Of CMI, he said, "quite frankly, it's such bad P.R. for them...If there's nothing wrong with this thing...you'd think they'd step up and say, 'Sure, analyze away, you'll see we're the maker of the best breath-test analyzer on the face of the earth.'"
CNET News.com's Declan McCullagh contributed to this report.
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This is what the software industry is all about these days. Get the product working during the sale; who cares if it fails when it's needed most. (Coming from a software developer)
There are only benefits to doing a code review, unless you think it is OK to jail innocent people or don't mind if guilty people walk free..
can be assessed without viewing the actual code.
Assessments involving multiple tests for accuracy and
calibration can be done without seeing the source. In fact,
viewing the source is likely to be less useful than empirical tests.
(I doubt the actual source code does much of the work in a
device of this nature - the accuracy of the sensor to detect
alcohol molecules would be of far more significance.)
If there is any doubt of the accuracy of these devices, why were
they chosen for use at all? Why continue to use them instead of
taking a blood sample and assessing alcohol content with the
traditional serum analysis?
The prosecution should be able to demonstrate the devices are
accurate 99.9% of the time (if indeed they are), without having to
present the source code.
It sounds a bit like a phone company being asked to present the
source code for its phone system before a phone tap is
admissible as evidence.
You can argue computer code, proprietary rights, semantics of the law and "high minded" principles all you want all you want. It won't obscure what I believe is really going on here.
Is someone going to argue the guy was not drinking and driving? I don't think so. Do you know any dead bodies that got the way from someone drinking and driving?
I go along with the people who are saying, test the machine as a black box. Show that it's accurate within the required specifications and that is all that's needed here. Does somebody expect to find a comment in the code that says, "This is where an inaccurate result is reported when used in Minnisota - hee hee."?
Bye.
- Why wasn't the results verified?
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by aka_tripleB
August 13, 2007 12:02 PM PDT
- I think it was a couple of years ago when I was in college, that a Fort Wayne officer told me that if a person gives a positive reading for being drunk, they take the person in and they verify the result by doing a blood test. I want to know why this wasn't done in this case in Minnesota. Don't they verify the results there?
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