"Can I have your badge number and the source code to your breathalyzer?"

[mouthwater]

A Minnesota man accused of drunk driving has sued to see the source code of the Intoxilyzer 5000EN machine that busted him, and the state Supreme Court is allowing the request to go forward.

The St. Paul Pioneer Press is reporting that Dale Lee Underdahl has challenged the effectiveness of the breath analyzer used by police to arrest him for drunk driving, and he's demanding to see the source code in order to make sure the machine works as advertised.

His attorney told the paper, "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."

That seems... unlikely, but it is interesting that the state does not want to reveal the information that would show whether its law enforcement tools are truly accurate. The company that makes the Intoxilyzer, CMI Inc. of Owensboro, Kentucky, also has no desire to turn over the code. The state isn't sure that it has the rights to the source code, though the agreement between CMI and the state does appear to give the state the necessary control of the source code. A succession of Minnesota courts have now ruled that the defendant has a legitimate right to make sure the device is accurate, and with the recent Supreme Court decision, the matter appears to be settled.

The "source code defense" has become more popular in recent years and has occasionally resulted in the code being disclosed. In 2005, a group of Florida defendants also won the right to examine the source code of a machine.

It only seems legitimate for the accused to know if the tests are accurate and if the software in the machines works as advertised. Security researcher Ed Felten made this point back in 2005 after the Florida case hit the headlines. The issue, he said, is about "fairness for the accused. If they’re going to be accused based on what some machine says, then they ought to be allowed to challenge the accuracy of the machine. And they can't do that unless they’re allowed to know how the machine works."

As a bonus, if a company proves unwilling to turn over the code, the case is often thrown out without any need to prove that the source code is in fact flawed.

One of the common criticisms (which is also made of voting machines) of breath devices is that the "state-certified" models are updated even after they are certified. The companies that manufacture the machines make tweaks, bug fixes, and even add new features, but the machines are not generally recertified after every single source code change. This means that any given machine could potentially be running non-certified code, code which may or may not have errors. And as voting machine software has shown, assuming that such source code is rigorously locked down and tested can be a a bad idea.

http://arstechnica.com/news.ars/post...urce-code.html

Reputation Comments on this post:

	Interesting article
	Thanks for the info, must send this to a friend that is facing a similar charge

[asd.]

Wouldn't it have been easier for him to get a blood test?

[yamman13]

not if he was above the legal limit. as it said, "As a bonus, if a company proves unwilling to turn over the code, the case is often thrown out without any need to prove that the source code is in fact flawed." so if the state don't bother, he could get away with drunk driving.

[Alfa]

If source code is released then this may expose vulnerabilities based on which a test can be disputed or it may show a way to escape an effective test.

[sg43]

Very interesting SWIM'S friend recently got a DUI I will let him know of this defense.

[Pondlife]

Manatee judge tosses DUI breath tests

BRADENTON — The results of breath tests in more than 100 local drunken-driving cases will not be allowed at trial, a judge announced Tuesday.

The validity of those breathalyzer tests has been challenged for more than three years because of the Intoxilyzer 5000, a machine that uses a breath sample to measure a person’s blood-alcohol content.

Manatee County Judge Doug Henderson ruled two years ago that any Intoxilyzer 5000 tests were inadmissible in trial, but prosecutors appealed. On Tuesday, Henderson told lawyers that his ruling had been affirmed by the Second District Court of Appeal and Circuit Court.

Henderson instructed attorneys to draft an order reflecting the court’s decision, and that he planned to sign it, he told the Bradenton Herald.

The announcement could mean long-awaited conclusions to a legal fight that has stalled the cases in Manatee and Sarasota counties. It was unclear late Tuesday whether other appeals were possible.

Prosecutors must now decide whether to take the cases to trial without that evidence or reduce or dismiss the DUI charges.

Defense attorneys have challenged the machines, saying their clients have a right to have DUI defense experts analyze whether the machines function properly.

But Kentucky-based CMI Inc., the company that makes Florida’s breath-test machines, refused to release its source code, or computer software. Both Henderson and Sarasota County Judge David Denkin ordered CMI to divulge the code, but CMI said it is a protected trade secret.

Although Henderson and Denkin agreed, they determined the refusal was a violation of due process. The judges ruled the breath-test evidence should be tossed from trial.

“The defendant’s right to a fair trial outweighed the manufacturer’s claim of a trade secret,” Henderson said Tuesday.

The appeals court ruling could cripple many of the cases.

“We are going to wait until we have reviewed the written order to determine whether we have any appellate fights and what sort of action we should take with the cases,” said Assistant State Attorney Erica Arend, chief of the misdemeanor division in the 12th Judicial Circuit, which consists of Manatee, Sarasota and Desoto counties.

Mark Lipinski, who represents seven defendants challenging the source codes, said the state likely will be forced to reduce charges — or drop the cases entirely.

Prosecutors could still take their cases to trial using other evidence, including field sobriety tests, admissions of guilt and other indicators of impairment.

Some of Lipinski’s clients have been waiting for a conclusion to their case for more than three years.

“My clients didn’t get swift justice, but at least they got justice,” Lipinski said.

“What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret,” he added. “It means the state has to give full disclosure concerning important and critical aspects of the case.”

To date, CMI is facing more than $2 million in fines because of their refusal to release the source codes, Lipinski noted.

“Even in today’s economy, a million here and a million there amounts to real money,” he said.

http://www.bradenton.com/847/story/1152077.html

Reputation Comments on this post:

Good news? bad news? whos cares its still an intersting artical!

[fnord]

Originally Posted by Alfa

If source code is released then this may expose vulnerabilities based on which a test can be disputed or it may show a way to escape an effective test.

Its great that some people wont have to face jail time or have such charges on there record but while im excited i cant bring myself to condone drunk driving.

To use the same quote nag used from the church of euthanasia "drunk driving? Take off your seat belt!"

[gmeziscool2354]

I was told by a states attorney in md once two very interesting things. One hand held breathalyzers are not considered defensible legal evidence and two that the margin of error on any breath test is .02. This means that blowing a .08 or .09 can be contested and in the state of maryland a few first time ofenders have had their cases droppedl over this