Are They Finally Getting It?

Posted by Lawrence Taylor on January 23rd, 2009

As readers of this blog are aware, one of my biggest peeves is the demonstrated unreliability of breathlyzers which largely determine an accused citizen’s guilt or innocence….and of the continuing refusal of manufacturers to let the defense or prosecution inspect the critical software – even to the point of ignoring lawful court orders.  See, for example, Breathalyzer Manufacturer Thumbs Nose at Court and Judge: Divulge Breathalyzer Code…or Else.

In other words, "trial by machine" — but the accused can’t confront his accuser.

In what appears to be a growing trend across the country, judges are beginning to rise above MADD’s political hysteria and recognize the blatant denial of due process and basic unfairness.


Breathalyzer Unit Should Be Inspected

Bradenton, FL.  Jan. 16 – Outrage over a judicial ruling on drunk driving on what could be perceived as a “technicality” decision came swiftly this week. But the court justifiably stuck to a strong adherence to the rule of law.

Since the introduction of breath tests in drunk-driving investigations decades ago, defense attorneys have attacked the validity of the results.

Now Florida’s Second District Court of Appeal has affirmed a Manatee County judge’s ruling that bars the results of breath tests in more than 100 DUI cases because the manufacturer of the testing equipment refuses to reveal the inner workings of its device.

This is not a dilemma unique to Manatee and Sarasota counties. This is a legal quandary across the nation, with similar court rulings in Louisiana, Arizona, New Jersey and Massachusetts.

Defense attorneys assert that DUI defendants hold the due process right to have the Intoxilyzer, manufactured by Kentucky-based CMI Inc., analyzed by programmers, biologists and physicists to determine whether the device provides precise results.

The company refused orders from both Manatee County Judge Doug Henderson and Sarasota County Judge David Denkin to reveal the source code, claiming the software is a protected trade secret.

Even though both judges agreed with the company on that point, they ruled the defendant’s due process rights had been violated and breathalyzer evidence should not be allowed into evidence…

The rule of law must apply here, not the emotion surrounding the drunk-driving issue. Everybody wants to rid our roadways of reckless lawbreakers and potential killers, but that does not justify accepting as an article of faith that this product produces solid evidentiary results each and every time.

That would deny defendants the right to a fair trial.

We must determine if this commercial product does indeed have flaws. Are there bugs in the software? Defects in the machine?

Have we not learned our lesson from the numerous bad products exposed in the past year alone, especially imports from China, from toys with lead-based paint to deadly pet food? And now tainted drywall.

CMI should not be allowed to hide behind the “trade secrets” defense. An independent testing group, under a vow of secrecy, should check out this product thoroughly.

Only then will law enforcement agencies and prosecutors around the nation have confidence in their drunk-driving cases.


So what are the manufacturers hiding? 

Well, this news story involves a fight in Florida over CMI, Inc.’s breath-testing machine, the Intoxilyzer.  In the only instance of a manufacturer actuyally complying with a court order, Draeger Corporation (reluctantly) obeyed the New Jersey Supreme Court and turned over the software for its Alcotest 7110.  After extensive analysis by experts, the conclusion:    


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…


For a more detailed look at the expert’s report, read my post Secret Breathalyzer Software Finally Revealed.
 

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