Archive for September, 2008

Judge Orders Secrets of Breath Machine Revealed

Saturday, September 13th, 2008

As I’ve written in past posts (Secret Breathalyzer Software Still Secret), defense attorneys have repeatedly tried to gain access to the secret software used to run the various models of breath-testing machines.  As the geeks say, "garbage in, garbage out":  erroneous or badly written software will result in erroneous test results — and thousands of citizens wrongfully convicted of DUI.  Yet, manufacturers have refused to turn the software code over, claiming "trade secrets".  The real reason: neither they, the police nor the prosecution want the loss of public confidence that would result from disclosure of inaccurate and unreliable software.

Bottom line:  Profits trump justice.

This wall of silence was breached some time ago when the New Jersey Supreme Court ordered the manufacturers of the AlcoTest 7110 to turn over the source code.   See Secret Breathalyzer Software Finally Revealed.  That code was analyzed by a software laboratory.  To no one’s great surprise, the laboratory found the software to consist of no "trade secrets", but rather of non-proprietary and very primitive and defective code.  As the experts concluded in their report:

The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards…

Despite this beacon of light in the judicial darkness, the courts of other states continue to ignore the pleas of the accused to confront their accusers.  Remember:  in the courts of most states, a citizen is rebuttably presumed by law to be guilty if one of these machines reads .08% or higher.  See my post Whatever Happened to the Presumption of Innocence?  But cracks are appearing in the wall of silence.  Courts in Florida, for example have ordered the source code turned over to the defense – a court order the manufacturers have refused to follow.

Yesterday, an Arizona court ordered the manufacturers of another breath-testing device, CMI Corporation’s Intoxilyzer 8000, to turn over the software code to the defense.

Lawyers Win Access to DUI-Test Software

Defense wants to test if Intoxilyzer is accurate

Tucson, AZ.  Sept 13  -  Defense attorneys scored a major victory Friday when a Pima County Superior Court judge ruled they should be given access to the software that powers a breath-testing machine used on suspected drunken drivers.
For the past several months, defense attorneys throughout the county have been arguing that they should be given the "source code," or software, used in the Intoxilyzer 8000.
The attorneys say the source code is needed to determine whether breath tests administered by the Tucson Police Department and the University of Arizona Police Department are accurate and reliable. (The Pima County Sheriff’s Department and the Arizona Department of Public Safety take blood samples.)
The defense attorneys maintain the issue is a constitutional one; defendants have the right to cross-examine and confront their accusers.
Prosecutors have maintained that experts have other ways to determine if the test results are reliable. They also say the source code is a trade secret and shouldn’t be disclosed.
On Friday, Judge Deborah Bernini ruled that the source code is not a trade secret. She noted that the president of CMI, the company that manufactures the machine, testified that the Intoxilyzer 8000 is not patented, and neither is its copyright on the source code.
Bernini ordered CMI to turn over the source code to attorney James Nesci, who is the lead counsel on all of the cases…
City Court judges have split on the issue, with six siding with the defense attorneys, two siding with prosecutors and one not yet issuing a ruling. Justice Court judges have refrained from issuing any rulings, preferring to wait for Bernini to issue her ruling.
In the City Court cases, the judges not only ruled that the defense attorneys should have been given the source code, but they prohibited prosecutors from using breath-test results against about 170 defendants…
"An inaccurate machine is of no benefit to anyone," Nesci said. "Inaccurate results could mean imprisonment for innocent people and exoneration for the guilty. People have the right to know how these machines get their results."
Pima County attorneys aren’t the only ones battling with CMI, the producer of the Intoxilyzer 8000, Nesci said.
Law enforcement officers across Arizona began using the Intoxilyzer 8000 last year, Nesci said.
Police like the device because it weighs half of what its predecessor weighs and can be powered by a squad car’s cigarette lighter, Nesci said.
Six other states have been battling CMI over the source code — Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey.
"CMI has currently racked up over $1.2 million (in fines) in a civil contempt order for not disclosing the source code" in Florida, Nesci said.
The machine also failed to meet precision and accuracy testing in Tennessee, so law-enforcement agencies there are prohibited from using it, Nesci said…
 Are the days of secret trial by machine finally nearing an end?

Immaculate Intoxication

Thursday, September 11th, 2008

Can alcohol be created by the human body itself — without any drinking? Apparently so.

In an interesting scientific article, two physicians at Union Memorial Hospital in Baltimore reported that they detected the odor of beer in three of their patients. This was in an isolated hospital setting; there was no access to alcoholic beverages. The doctors had urine samples taken and analyzed by gas chromatography. Result? All three showed the presence of alcohol in their systems. Two of these were then tested for actual blood-alcohol concentration (BAC). One showed a BAC of .043%. The other was .121% — or 1 1/2 times the legal limit for DUI!

The presence of alcohol in human specimens containing glucose and yeast should come as no surprise.  Several have made this observation. Under normal circumstances trace amounts of alcohol may be found in the blood; the alcohol is then channeled into an energy pathway by hepatic alcohol dehydrogenase…

The two physicians continued:

The Japanese report the auto brewery syndrome in which they have seen middle aged patients with bowel abnormalities, most often after surgery, who have yeast overgrowth, usually candida, in the G.I. tract and who ferment ingested carbohydrates, producing enough alcohol to result in drunkeness.” Mullholland and Townsend, “Bladder Beer – A New Clinical Observation”,  95 Transactions of the American Clinical Climatological Association 34 (1983).

In other words, the body is manufacturing alcohol by itself — in some cases, enough to become legally intoxicated.   This has been confirmed by other studies. Swedish researchers, for example, have found that:

Increasing evidence has emerged to show that endogenous ethanol does exist, the the concentrations seen have large inter-individual variations. Our results show a markedly skewed distribution of values…The reason for the wide inter-individuaal variation in healthy abstaining individuals is hard to explain.” Jones et al., “Determination of Endogenous Ethanol in Blood and Breath By Gas Chromatography”, 18 Pharmacology, Biochemistry and Behavior 267 (1983).

How many folks with “immaculately conceived” alcohol in their systems have been arrested and convicted for DUI? These people were innocent, right?

Wrong. In the rush to convict drunk drivers (and with increasing federal coercion), all states have now passed so-called per se laws: driving with a BAC of .08% or more. Neither intent, negligence or even knowledge is required. The crime consists of simply having the alcohol in your body.

Even if you’ve had nothing to drink.


Ready-Made DUI Arrest Reports

Friday, September 5th, 2008

An increasing number of police officers are using pre-written arrest reports in drunk driving cases. In other words, they are writing out a batch of phony reports — including driving symptoms, slurred speech, failed field sobriety tests, admissions of drinking — and then just filling in the names, dates, etc., when they actually make an arrest. 

Saves a lot of time. In this computer age, however, this practice is commonly abbreviated even further by using computer templates: word processing forms which have all of the “facts” already entered, with blanks to fill in for name, date, etc.   Following is an example of this time-saving approach to DUI law enforcement:

DUI Suspects May Go Free Due to Questionable Arrest Reports

Orlando, FL  November 16 Channel 9 Investigates has uncovered dozens of DUI suspects that may go free because sheriff’s deputies appear to be using pre-written arrest reports.

There are some experts who believe this may even amount to perjury. When a deputy makes a DUI bust, the officer writes an arrest report. It’s the official record of what the deputy says happened. But Eyewitness News has uncovered dozens of Orange County DUI arrest reports that apparently have come from pre-written templates.

One report, for instance, says the suspect “stumbled slightly when walking and swayed moderately … with a three inch to five inch orbital rotation/sway.” At least ten reports, written by the same deputy over a six-month period, use the exact same phrase. Even reports written by other deputies contain that exact phrase.

In many reports, the deputy noticed the “strong odor of an alcoholic beverage within my interior cab.” That exact phrase appears in report after report. And it’s there whether the suspect’s blood alcohol content was anywhere from .03 to .16.  9 Investigates found 11 other reports, written by a different deputy, that use those exact words, again, no matter how much the suspect had to drink.

“It just doesn’t smell right,” said DUI defense attorney Stu Hyman. “It’s a sad state of affairs when somebody hasn’t even committed the offense yet, but the report has already been written.”

9 Investigates found one deputy whose suspects always do an “orbital rotation” and always “counter-clockwise.” Five deputies always leave their suspects in the car for exactly five minutes before smelling alcohol. In one case, a suspect was described as “he/she.”

It all leads Hyman to believe the reports were pre-written.

“Why is it that everyone is swaying three to five inches? Why isn’t it two to eight? Why not one to seven inches?” questioned Hyman….

9 Investigates found court testimony where a deputy indicated the sheriff’s office has computer DUI templates. The deputy testified, “I’ve been told people use them. I just choose not to.”

None of this comes as any surprise to experienced DUI attorneys, who are used to seeing what I have called in my book and lectures “xeroxed symptoms”. This has been going on for a long time. (Years ago, I used to get a court order for copies of an arresting officer’s DUI reports for the previous 30 days; when the reports became an embarrassment, the Orange County (California) D.A.’s office finally appealed and stopped the judges from issuing the orders — but never prosecuted a single officer for perjury or filing a false report.)