Archive for June 9th, 2005

Breathalyzer Manufacturers Won’t Tell How They Work

Thursday, June 9th, 2005

Let's assume that you are being prosecuted and the key evidence against you comes from a machine.  The prosecutor wants to use the test results from that machine in trial to prove your guilt.  Your attorney asks for information about how the machine works, including the critical computer code, to determine if it is accurate and reliable.  The prosecutor refuses, saying the information is a protected trade secret.  Your attorney says you have a constitutionally protected right to a fair trial — including the right to inspect the evidence against you, the right to confront your "accuser". 

Should your attorney be entitled to the information?  Consider a recent article in the Orlando Sentinel:

SANFORD — In the past five months, Seminole County judges have thrown out hundreds of breath-alcohol tests that show drivers were legally drunk.

The reason: The state won't disclose how the test machines work — not because it doesn't want to, but because it doesn't have the information, and the manufacturer won't give it up….

All four Seminole County criminal judges now use the same standard: If a DUI defendant asks for a key piece of information about how the machine works — its software source code — and the state can't provide it, the breath test is rejected….

Seminole judges are all following the lead of Seminole County Judge Donald Marblestone, who in January ruled, though the information may be a trade secret and controlled by a private contractor, defendants are entitled to it.

"Florida cannot contract away the statutory rights of its citizens," the judge wrote.

Judges in other counties have said the opposite. The state can't turn over something it does not possess, and the manufacturer shouldn't have to turn over trade secrets, they've said….

The demand for the machine's source code has popped up in Orange County but with less-dramatic results. Some judges have ordered the state to turn it over, but others have not, said Michael Saunders, the county court bureau chief for State Attorney Lawson Lamar.

Trade secrets vs fair trial: If you were the judge, what would you do?

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