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The Florida Breathalyzer/Source Code Cases
Saturday, November 05 2005 @ 01:50 PM EST

What a difference it makes to have a good lawyer.

You may have heard about the DUI cases in Florida, where the defense attorneys for 150 defendants asked to see the breathalyzer source code, and won. If you have ever been arrested for DUI, and I hope you haven't been, did your lawyer think of that?

This is an interesting situation the breathalyzer company is in. They are asserting trade secret, and they have just said they will not turn over the source code, despite the judge's order:

The maker of the Intoxilyzer 5000 breathalyzer, CMI Inc., has informed prosecutors involved in several DUI cases in Sarasota County, Florida, that it will not assist prosecutors in complying with a judicial order [PDF] to allow an expert hired by defense attorneys to review the source code for software used in the device.

On November 2, a three-judge panel ordered prosecutors to hand over the source code within 15 days, or by November 17, in conjunction with a state law that says defendants have a right to all information about the operation of computerized devices used as evidence in court, including manuals, troubleshooting guides and, potentially, source code for software.

If this case interests you, here's an interview with attorney Robert Harrison, interviewed before the court ruled in his favor. One snip:

It is important to note that all of the significant functions of the breath instrument is software, not hardware. The hardware only measures how much light is absorbed in a sample chamber for three specific wave lengths; these measurements are obtained about 5 times per second for 7 to 10 seconds. The software then analyzes this data and makes a conversion to blood alcohol level on many assumptions, some scientifically sound, others which reasonable scientists would debate.

Without knowing why the computer program is saying my client committed a crime, it is difficult to effectively challenge this evidence. The rhetorical question posed by one of the Judges to the prosecution last Friday sums it up well: "Doesn't the due process rights of the accused take precedent over a manufacturer's claim of trade secret?"

The court ruled that it does. Let's look at the details.

The defense is based on a specific Florida law that requires that only approved breath testing machines be used and that when a defendant requests it, full information concerning the test be made available. The court relied on a prior case, Muldowny, which held:

" . . . when a [defendant ] risks the loss of driving privileges or perhaps freedom based upon the use and operation of a particular machine, full information includes operating manuals, maintenance manuals and schematics in order to determine whether the machine actually used to determine the extent of a defendant's intoxication is the same unmodified model that was approved pursuant to statutory procedures."

Your state may not have a similar law. The State of Florida's position was that if source code is confidential, it isn't under obligation to produce it, since the code isn't within its direct or even indirect possession. The judge disagreed:

The Muldowny court did not address the issue of production of source code. We find no reason to differentiate between the importance of producing the schematics and the manuals of the Intoxilyzer and production of the EPROM source code (i.e. the software that is in effect, instructing the intoxilyzer how to operate). . . .

...the government's argument that the State of Florida does not have in its possession the source code does not provide a legal basis for non-disclosure.

Oddly, the state did not bother to argue lack of materiality or irreparable harm, or suggest alternatives, which no doubt helped the court to rule in favor of the defendants. Also, there is a Florida statute, Section 90.506, which provides that trade secret privilege is not allowed where it would "otherwise work injustice", although the court can take appropriate measures to protect the privilege. In this case protections were ordered, so that only the defense expert would be allowed to view the code, for example, and he couldn't retain or copy it (judges still don't get that computers inevitably do copy, that the expert can't view the materials, assuming they are digital, without copying, but that's another story), under pain of sanctions, such as criminal contempt of court.

The defense's expert testified that one component of the machines, the EPROM's (erasable programmable read only memory chips), appeared to show some change, but without source, he couldn't ascertain whether the change was substantial or inconsequential. The manual for the Intoxilyzer says that the EPROM has a label covering the top of the chip and warns that under no circumstances should the label be removed, because removing the label "will expose the chip to ultra-violet light and as a result will cause the chip to be erased." I'm sure I don't have to connect the dots for you on that.

The judges got it too, and the panel ruled that testing the accuracy of the machines required testing by an outside entity, not the manufacturer:

When the law expressly provides that Defendants are entitled to full information about the instrument that is used to establish their guilt, such full information logically includes making the instrument available for open inspection. Full information should include the software that runs the instrument. To construe the statute otherwise, is tantamount to granting the state authority to use confidential information (i.e. the software code) to establish the guilt of a criminal defendant without disclosing the information to the defendant for inspection and possible impeachment.

So, how do the lawyers know to raise issues like this? They do research. There were earlier cases where cases were dismissed over the same issue in Florida, cases listed in the order. The brilliance shown here is in putting 150 defendants together. No doubt that made it financially possible for the lawyers to afford the time for research and to hire an expert, by pooling resources. But the real heroes in this story are the judges, who showed the courage to stand for constitutional rights even for unpopular defendants. At least in Florida, you can't be convicted based on secret testimony from a mystery machine you can't challenge. State governments wouldn't face this issue if they could use Open Source breathalyzer machines, now that I think of it.

Where can you find more information? Findlaw is one place. Google can be your friend. Or go to a local law library, if there is one you can access, or buy time on Lexis and the like, and look up keywords, as in "DUI" "breathalyzer" and so forth, in legal encyclopedias and your state's statutes books, and read all the cases you find where the facts are similar to the facts of interest to you. Note that you need a lawyer, in my opinion, any time you are involved with an actual legal case. I wouldn't set foot in a courtroom without one, personally, any more than I'd operate on myself after reading a book on surgery, and I hope you never do either.

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