Secret Breathalyzer Software Still Secret

Posted by Lawrence Taylor on August 13th, 2007

As I've written repeatedly in the past, a DUI/DWI case has degenerated essentially into a "trial by machine".  If the machine says the blood alcohol level is .08% or higher, the law presumes him to be guilty — and at trial the jury will be so instructed.

I've also written ad nauseum about the myriad problems that render these machines inaccurate and unreliable.  Among other things, for example, their operation and computation of blood alcohol levels is controlled by an old Z-80 microprocessor — an historical antique that used to drive the original Pong computer game.  

And as the computer techs are fond of saying, "Garbage in, garbage out". 

So wouldn't it be nice to know just what the computer source code was in this antique that determines guilt or innocence?

One attorney in Minnesota, Jeffrey Sheridan, thought so, and asked the court to order the prosecution to turn over the code for inspection.  "For all we know," he said, "it's a random number generator".  The court agreed. 

End of story?  Hardly.  After all, this is a drunk driving case, where the "DUI exception to the Constitution" applies.


Doubts Arise Over Fate of Breathalyzer

Source Code in Minn. Case

 An attorney for a Minnesota man accused of drunken driving says he doesn't think the manufacturer of a breathalyzer will meet a court-imposed deadline of August 17 to turn over its source code.

August 10, Minneapolis  -  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 over 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.


Kind of makes you wonder what the manufacturer is trying to hide, doesn't it?  Maybe the secret software code for computing blood alcohol levels isn't all that it's claimed to be?

And why is the State of Minnesota more interested in protecting the Kentucky corporation's financial interests than the rights of its own citizens?

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