Stopping as a Sobriety Checkpoint

Friday, June 8th, 2018

Memorial Day just past and summer is around the corner. Summer months mean beach trips, vacations, barbeques, 4th of July, and this year, my personal favorite, the World Cup. Where there is fun to be had, law enforcement expects drunk and impaired driving. Many of the summer activities I just mentioned do, often, involve indulging in the alcoholic beverage, possibly even a little of the Mary Jane now that’s it’s legal here in California. One of law enforcement’s favorite weapons in their battle against impaired driving is the sobriety checkpoint.

The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer. So how can law enforcement do this without having a warrant?

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:

  1. The decision to conduct checkpoint must be at the supervisory level.
  2. There must be limits on the discretion of field officers.
  3. Checkpoints must be maintained safely for both the officers and the motorists.
  4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
  5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
  6. The checkpoint must show indicia of official nature of the roadblock.
  7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
  8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

 

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.

Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.

Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.

If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?

The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep you mouth shut until given the opportunity to call your attorney.

Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.

As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.

This summer season be on the lookout for sobriety checkpoints. But should you find yourself about to drive through a checkpoint with no way to legally turn around, know your rights and use them. That’s what they’re there for.

 

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California Man Faces DUI after Police Find Him Unconscious in Running Car

Friday, June 1st, 2018

A Sonoma man was found unconscious in his parked, running car by Petaluma police. Officers arrested the man, who had recently been convicted of a DUI, on suspicion of another DUI.

Joel Barrera, 34, was found asleep in his vehicle on May 22nd by Petaluma police officers. Although the car was parked in the parking lot of a local park, the engine was running. After waking Barrera, officers determined that he was under the influence of alcohol with a blood alcohol content of almost twice the legal limit of 0.08 percent.

What’s more, officers found a semi-automatic handgun and a loaded magazine in his car and discovered that Barrera was already on probation for a DUI conviction out of Marin County for which his license was currently suspended.

Barrera was arrested on suspicion of driving under the influence, carrying a concealed gun in a vehicle, driving on a suspended license, and violating probation.

We’ll have to wait and see what happens to Barrera. But until then, you might be wondering how it is that someone can even be arrested on suspicion of driving under the influence if they weren’t even driving.

If a person is found sleeping in their car, as was the case with Barrera, it is likely that any arresting officer did not see the person drive. Therefore, there may not be any direct evidence for a prosecutor to prove that a person drove.

Just because law enforcement does not actually see a person drive under the influence doesn’t mean they can’t be found guilty of driving under the influence. A prosecutor can use circumstantial evidence to prove that a person drove to where they were found while under the influence and then fell asleep in their car.

For example, if an intoxicated person is sleeping in their vehicle in the middle of the road or at the scene of a collision (believe me, it happens more often than you would think), then the prosecutor can raise those facts to create the inference that the person had driven to those locations. In other words, the prosecutor may argue that, based on the surrounding circumstances, it is reasonable to infer that the defendant drove to the location where they were found even though there is no direct evidence that they drove there.

On the other hand, if those facts do not exist that would create the inference that the defendant drove then the prosecutor is going to have difficult time proving that the person actually drove the vehicle while being under the influence. This scenario presents itself from time to time as well. But the person may still be charged with another crime such as drunk in public.

In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence because he could have driven there sober, drank, and then fell asleep, the officers did arrest the defendant for drunk in public.

The Court concluded that, in order to prevent the defendant from waking up and then drive away drunk, they needed to arrest him on suspicion of being drunk in public.

Needless to say, no person should be in a vehicle when they’re intoxicated whether they’ve driven or not. A prosecutor may still be able to successfully argue the person drove when, in fact, they didn’t. Furthermore, if a prosecutor cannot prove that the person drove, they may still be able to secure a conviction for some other crime such as drunk in public.

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What Happens When a Person Under the Age of 21 Gets a DUI?

Friday, May 25th, 2018

I am currently in the midst of a California DUI case where my client was under the age of 21 at the time of their arrest. At the beginning of their case, my client asked me what could happen to him. Unfortunately, it’s a common question as many people who are not legally allowed to drink are caught driving with alcohol in their systems.

As most of us know, the age at which someone is legally allowed to have alcohol is 21-years-old. Although the age of majority is 18, for purposes of this article, I’ll refer to a person under the age of 21 as a “minor.”

Under California Vehicle Code section 23136, otherwise known as California’s “Zero Tolerance” law, it is illegal for a minor to drive with a blood alcohol content of 0.01 percent or more in their system. It does not matter whether the alcohol in the minor’s system came from an alcoholic beverage or some other source like medicine. Nor does it matter whether the minor was “under the influence.” The minor cannot have any alcohol in their system while driving. Fortunately, however, a violation of Vehicle Code 23136 is non-criminal and only results in a one-year suspension of driving privileges through the California Department of Motor Vehicles.

Although not a criminal matter, a minor facing a suspension under California Vehicle Code section 23136 may still want to hire an attorney to fight the DMV suspension. In the event that a suspension cannot be avoided, the attorney can assist the minor obtain a “restricted license” to allow them to go to and from essential locations such as work, school, and the doctor’s office.

If, however, a minor is caught driving with a blood alcohol content of 0.05 percent or higher, they can be charged with an infraction under Vehicle Code section 23140. The penalty if someone is convicted of a violation of section 23140 is a one-year suspension of driving privileges, a fine of $100, and, if the person is over the age of 18, a mandatory alcohol education program of three months of more.

In addition to fighting the license suspension, as was the case with a violation of California’s Zero Tolerance law, a lawyer can help the minor fight the infraction under section 23140 using the same arguments commonly used in an adult DUI case.

If the minor is either under the influence of alcohol or caught driving with a 0.08 percent blood alcohol content or more in their system, a prosecutor can charge the minor with the standard DUI charges under California Vehicle Code sections 23152(a) and 23152(b) – misdemeanor driving under the influence and misdemeanor driving with a BAC of 0.08 percent, respectively.

A person, including a minor, is under the influence of alcohol if their physical or mental abilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristics of a sober person of ordinary prudence under the same or similar circumstances.

In addition to being charged with driving while under the influence, a minor can also be charged with driving with a blood alcohol content of 0.08 percent or more.

The penalties for either standard DUI offenses under sections 23152(a) or 23152(b) include a criminal misdemeanor conviction (which remains on a person’s criminal record), suspension of driving privileges, three to five years of summary (informal) probation, a fine between $390 and $1,000, an alcohol education program of three, six, or nine months, up to six months in jail. The penalties can also include non-mandatory conditions such as a Mothers Against Drunk Driving Victim Impact Panel, a hospital and morgue program, or AA meetings.

It shouldn’t take me to tell you that if anyone, including a minor, is charged with the standard DUI offenses under Vehicle Codes 23152(a) and 23152(b), they should seek the assistance of a skilled California DUI attorney. There is too much as stake not to.

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Bartender Charged for Over-Serving Customer who Later Killed Someone While Driving Drunk

Thursday, May 17th, 2018

Houston police yesterday arrested Natalia Ortiz at El Muelle Seafood restaurant where she works as a bartender. Almost exactly two years ago, one of Ortiz’s customers left the restaurant under the influence of alcohol and crashed into another vehicle killing one of the occupants.

You might be asking why Ortiz is being arrested and charged for something her customer did. Well, it was later determined that Ortiz served the patron, Edin Palacios, a whopping eleven beers that night before he got behind the wheel.

After Palacios left the restaurant, a Houston police officer attempted to pull him over. Palacios attempted to flee from the officer, ran a red light, and collided with a Dodge Charger. 18-year-old Jocelynn Valero, an occupant of the Dodge Charger was killed on the scene. The other occupant survived, but suffered a broken pelvis, a lacerated liver, and other significant injuries. Valero and the other occupant, her date, we’re driving home from their high school prom.

Prosecutors later determined that Palacios’s blood alcohol content was 0.18 percent.

According to Ortiz’s charging documents, a review of the restaurant’s surveillance video showed Palacios was “obviously intoxicated,” and who “was observed having difficulty in balance and coordination, dropping items from his hand…[and] nearly stumbles while walking.”

The documents went on to say, “This behavior was exhibited in front of [Ortiz] as she knowingly and intentionally continued to serve and deliver beer to the intoxicated subject.”

In 2016, Houston saw 89 fatal DUI crashes, the most in the state of Texas according to the Texas Department of Public Safety. Valero’s death was one of 3,776 DUI-related fatalities in the state of Texas as a whole that year.

As a result of these unfortunate statistics, local prosecutors stepped up efforts to enforce laws prohibiting the over-serving of alcohol to obviously intoxicated bar and restaurant patrons.

“We’re not going after servers or bars that are conducting business legally, we’re going after people whose actions are criminal and negligent,” said Sean Teare, the prosecutor in charge of the Harris County District Attorney’s Vehicular Crimes Division. “When those actions result in the tragedies every day that we deal with on these roads, we’re going to come after them.”

Palacios was charged and convicted of felony murder. He was sentenced to 32 years in prison. Ortiz, on the other hand, has been charged with serving a drunk, a misdemeanor. We’ll be keeping our eyes on how her case plays out.

California has a law similar that which allowed the prosecutors in Ortiz’s case to charge her for over-serving Palacios.

According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

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Flaws in Breathalyzers Cast Doubt on DUI Convictions

Friday, May 11th, 2018

Defense attorneys have been saying for years; breathalyzers are flawed. A new report that was never meant to be seen was and it confirms the defense attorneys’ suspicions.

Unsurprisingly, our story begins with a DUI case which arose out of Washington state. The DUI defense attorney in the case sought the assistance of two experts to analyze the breathalyzer’s source code accuracy in producing blood alcohol content results.

The experts determined that the source code used by the breathalyzer in the case, which happens to be the same breathalyzer used in other states including California, was fundamentally flawed by producing elevated blood alcohol content readings for reasons I’m not smart enough to understand. The experts put their findings into a preliminary report.

In 2017 at a DUI defense attorney conference, the experts shared their findings and the report with the attendees. This prompted the manufacturer of the breathalyzer to initiate legal action for violation of a protective order regarding the breathalyzer’s source code. The manufacturer and the experts settled out of court.

The experts are now tightlipped about the settlement and have walked back the contents of their report later claiming that it was incomplete, unfinished, and should not be relied upon by those few people who were in possession of it.

ZDNet, however, obtained at copy of the report and published an article detailing its contents and the implications it could have for thousands of DUI cases in a number of states, including California.

 

Researchers say a breathalyzer has flaws, casting doubt on countless convictions

May 10, 2018, ZDNet – The source code behind a police breathalyzer widely used in multiple states — and millions of drunk driving arrests — is under fire.

It’s the latest case of technology and the real world colliding — one that revolves around source code, calibration of equipment, two researchers and legal maneuvering, state law enforcement agencies, and Draeger, the breathalyzer’s manufacturer.

This most recent skirmish began a decade ago when Washington state police sought to replace its aging fleet of breathalyzers. When the Washington police opened solicitations, the only bidder, Draeger, a German medical technology maker, won the contract to sell its flagship device, the Alcotest 9510, across the state.

But defense attorneys have long believed the breathalyzer is faulty.

Jason Lantz, a Washington-based defense lawyer, enlisted a software engineer and a security researcher to examine its source code. The two experts wrote in a preliminary report that they found flaws capable of producing incorrect breath test results. The defense hailed the results as a breakthrough, believing the findings could cast doubt on countless drunk-driving prosecutions.

The two distributed their early findings to attendees at a conference for defense lawyers, which Draeger said was in violation of a court-signed protective order the experts had agreed to, and the company threatened to sue.

Their research was left unfinished, and a final report was never completed.

Draeger said in a statement the company was protecting its source code and intellectual property, not muzzling research.

“Pursuant to a protective order, Draeger provided the source code to both of the defense experts in Snohomish County,” said Marion Varec, a spokesperson for Draeger. “That source code is highly proprietary and it was important to Draeger that the protective order limit its use to the purposes of the litigation at issue.” Draeger says it believes that one of the experts entrusted to examine the source code was using it in violation of the protective order, so Draeger sent the expert a cease and desist letter. Draeger says it “worked with the expert to resolve the issue.”

Of the law firms we spoke to that were at the conference and received the report, none knew of Draeger’s threat to launch legal action. A person with a copy of the report allowed ZDNet to read it.

The breathalyzer has become a staple in law enforcement, with more than a million Americans arrested each year for driving under the influence of alcohol — an offense known as a DUI. Drunk driving has its own economy: A multi-billion dollar business for lawyers, state governments, and the breathalyzer manufacturers — all of which have a commercial stake at play.

Yet, the case in Washington is only the latest in several legal battles where the breathalyzer has faced scrutiny about the technology used to secure convictions.

TRIAL BY MACHINE

When one Washington state driver accused of drunk-driving in 2015 disputed the reading, his defense counsel petitioned the court to obtain the device’s source code from Draeger.

Lantz, who was leading the legal effort to review the Alcotest 9510 in the state, hired two software engineers, Falcon Momot, a security consultant, and Robert Walker, a software engineer and decade-long Microsoft veteran, who were tasked with examining the code. The code was obtained under a court-signed protective order, putting strict controls on Momot and Walker to protect the source code, though the order permitted the researchers to report their findings, with some limitations. Although the researchers were not given a device, the researchers were given a binary file containing the state’s configuration set by Washington State Patrol.

Although their findings had yet to be verified against one of the breathalyzers, their preliminary report outlined several issues in the code that they said could impact the outcome of an alcohol breath test.

In order to produce a result, the Alcotest 9510 uses two sensors to measure alcohol content in a breath sample: An infrared beam that measures how much light goes through the breath, and a fuel cell that measures the electrical current of the sample. The results should be about the same and within a small margin of error — usually within a thousandth of a decimal point. If the results are too far apart, the test will be rejected.

But the report said that under some conditions the breathalyzer can return an inflated reading — a result that could also push a person over the legal limit.

One attorney, who read the report, said they believed the report showed the breathalyzer “tipped the scales” in favor of prosecutors, and against drivers.

One section in the report raised issue with a lack of adjustment of a person’s breath temperature.

Breath temperature can fluctuate throughout the day, but, according to the report, can also wildly change the results of an alcohol breath test. Without correction, a single digit over a normal breath temperature of 34 degrees centigrade can inflate the results by six percent — enough to push a person over the limit.

The quadratic formula set by the Washington State Patrol should correct the breath temperature to prevent false results. The quadratic formula corrects warmer breath downward, said the report, but the code doesn’t explain how the corrections are made. The corrections “may be insufficient” if the formula is faulty, the report added.

Issues with the code notwithstanding, Washington chose not to install a component to measure breath temperature, according to testimony in a 2015 hearing, and later confirmed by Draeger.

Kyle Moore, a spokesperson for Washington State Patrol said the police department “tested and approved the instrument that best fit our business needs,” and believes the device can produce accurate results without the breath temperature sensor.

The code is also meant to check to ensure the device is operating within a certain temperature range set by Draeger, because the device can produce incorrect results if it’s too hot or too cold.

But the report said a check meant to measure the ambient temperature was disabled in the state configuration.

“The unit could record a result even when outside of its operational requirements,” said the report. If the breathalyzer was too warm, the printed-out results would give no indication the test might be invalid, the report said.

Draeger disputed this finding. A spokesperson said the Washington devices check their temperature, the check is enabled, and that the devices will not produce a reading while the device is outside its operational temperature range.

When asked, a Washington State Patrol spokesperson would not say if the breathalyzer was configured to allow breath tests outside its operational temperature range, saying only that the device “has been tested and validated in various ambient temperatures.”

The report also scrutinized the other sensor — the fuel cell — used to measure a person’s alcohol levels. Any fuel cell will degrade over time — more so when the breathalyzer is used often. This decay can alter the accuracy of test results. The code is meant to adjust the results to balance out the fuel cell’s decline, but the report said the correction is flawed. Breathalyzers should be re-calibrated every year, but the state’s configuration limits those adjustments only to the first six months, the report added.

“We also note that the calibration age does not account for the use frequency of conditions; a unit that has been used hundreds of times per day would have the same correction as one used only once or twice in several months,” the report said.

Concluding the nine-page report, the researchers say they are “skeptical” that the Alcotest 9510 can produce a reliable measurement of breath alcohol.

“Although the apparatus states its output in very absolute terms, we recommend interpreting the results with extreme caution,” the report said.

LEGAL BATTLES

Although Momot and Walker’s code review was limited to devices in Washington, similar concerns dragged other states into protracted legal battles, forcing prosecutors to defend not only the breathalyzer but also how it’s configured.

But the line between Draeger’s source code and each state’s configuration is blurry, making it difficult to know who is responsible for incorrect results.

Draeger said in an email that the “calibration and adjustment procedures depend on the instrument, additional equipment and materials, and the persons performing these procedures.” When asked about the guardrails put in place to prevent calibration errors, the company said, “only trained and certified personnel perform special instrument certification procedures.”

Washington State Patrol said the device produces accurate results, even without certain sensors installed.

If source code gets into the wrong hands, the damage would be incalculable.

Draeger’s breathalyzer is widely used across the US, including in California, Connecticut, Massachusetts, New Jersey, and New York. It’s often the only breathalyzer used in the states where they were bought.

In both New Jersey and Massachusetts, defense lawyers raised concerns. By acquiring the devices used by the states, lawyers commissioned engineers to analyze the code who say they found flaws that they say could produce incorrect results.

But defense teams in both states largely failed to stop their state governments from using the devices, public records show.

New Jersey’s top court found in 2008 that a similar Alcotest breathalyzer — said to use the same underlying algorithms as the Alcotest 9510 — was “generally scientifically reliable” and can be used with some configuration changes. One such change was to adjust the breathalyzer’s results for women over age 60 — who often aren’t able to produce the minimum breath volume of 1.5 liters required for a test. But defense lawyers argued that these changes were never put into place.

The same court ruled five years later that the breathalyzer “remains scientifically reliable, and generates results that are admissible” in court.

In nearby Massachusetts, a scandal that blew up in 2017 involving alleged failings in the breathalyzer threw thousands of prosecutions into disarray, because “all but two of the 392 machines” examined in the state had not been properly calibrated.

A district judge ruled that breath test results from miscalibrated devices for two years prior to September 2014 were “presumptively unreliable,” said Joe Bernard, a defense attorney who led the case against the Alcotest 9510 in Massachusetts.

Bernard, and his colleague Tom Workman, a computer forensic expert who later trained as a lawyer and consulted on the case, obtained the state’s source code and produced a report.

In a phone call, Workman criticized the Draeger breathalyzer, arguing that it can produce widely inflated results. One section of his report claimed the device had a litany of programming errors, including code that — like in Washington — apparently fails to correct for fuel cell fatigue.

But the court rejected the findings and found the source code still produced sound scientific results.

“THROW CAUTION TO THE WIND”

While legal battles were ongoing, Washington waited to push ahead with its deployment, but the ruling in New Jersey case in 2008 was seen as a vote of confidence.

Almost a year later, Washington State Patrol’s toxicologist said in an email seen by ZDNet that the police department should “throw caution to the wind” to deploy the device to police officers across the state without commissioning an independent source code evaluation — though she recommended confirming with the chief of police.

When asked whether an independent evaluation was ever commissioned, a Washington State Patrol spokesperson would not comment further and referred back to the legal filings in the case.

A later email in 2015 confirmed that the Washington State Patrol “never commissioned” an independent evaluation.

Moses Garcia, a former Washington state prosecutor who now works for a non-profit providing local governments in the state with legal advice, said in an email that the earlier breathalyzer in the New Jersey case had already been deemed admissible, and that the newer Alcotest 9510 uses the “same basic algorithms and formulas” as its predecessor.

The former prosecutor criticized the defense’s discovery effort as “speculation.”

“In adopting and approving the [Alcotest 9510], the Washington breath alcohol program exceeds, by far, the scientific standards accepted in the scientific community for breath test instrument validation,” he said.

Five years after the contract was signed, Washington State Patrol began deploying hundreds of Draeger breathalyzers in 2014 — sparking interest from defense attorneys in the state.

Not long after, defense attorneys in the state sought access to the devices.

Lantz was granted access to the source code used for Momot and Walker’s code review by a local county court. In one of several recent phone calls with ZDNet, he recounted how he set out to see if there were problems with the state’s device.

“We thought we would find something but nothing like this,” he said.

SETTLEMENTS AND SETBACKS

Hundreds of DUI lawyers descended on Las Vegas in mid-2017 for their annual gathering.

At the event, the two researchers shared their findings, which claimed the Alcotest 9510 having a “defective design.”

Word spread quickly. Draeger sent the researchers a cease and desist letter claiming defamation and alleging the two violated a protective order, designed to protect the source code from leaking.

Draeger and the researchers settled before a case was filed in court, avoiding any protracted legal battle. A legal case disputing the fine print of the order could have taken years to resolve.

Draeger said it “remains willing to provide the source code for use in other litigation in Washington, so long as a proper protective order is in place.”

Beyond a tweet by Walker pointing to a settlement statement on his site, there was little to indicate there had been any legal action against the pair.

The statement said that the two experts “never intended to violate the protective order” and denied any wrongdoing. But the two sides “agree” the draft report was based on incomplete data and not finished — and that “no one in possession of the report should rely on it for any purpose.”

We reached out to Walker with questions, but he referred only to the settlement statement on his company’s website, and he declined to comment further.

Draeger would not say why the settlement did not include a retraction on the report’s findings.

“There has not been an evidentiary hearing in Washington. If and when there is one, Draeger will cooperate fully,” a spokesperson said.

But Lantz paints a different picture. The defense attorney said he believes there “really was no technical violation of the protective order,” because the report didn’t disclose any source code.

“I do believe that [Draeger] is trying to interpret the protective order to be something that it’s not,” he said. “If we could go back in time, I would’ve asked that the report was not handed out — just because of the optics of it.”

Lantz said the protective order is vague, but contends it was framed to prevent the researchers from using the source code or their findings for commercial gain — effectively preventing Momot and Walker from using their knowledge to build their own competing devices. He believes the order gives Draeger near complete control over the code and anything the company deems “protected” information.

That’s when Draeger “began developing a strategy on how to block” the researchers’ report, said Lantz, because the company didn’t want the “pervasive exposure of these flaws.”

“I believe that interest of Draeger’s to protect their bottom line overlaps with the state’s interest to keep juries from hearing this information about the problems,” he said.

Draeger maintained that it is protecting its intellectual property. The company said in response that it “takes very seriously the proprietary nature of its source code,” and “protects proprietary information as a sound business practice,” which can include various types of communications or agreements for a particular matter.

Momot and Walker are no longer involved with the case, but Sam Felton, a Washington-based software engineer, is set to conduct another review of the Alcotest 9510 code. When contacted, Felton would not speak in specifics about his findings to date, citing his own protective order, except that he found things in the code that caused him “to have concerns.”

And Lantz, now at a new law firm, is working on starting discovery proceedings in neighboring King County, home of Seattle, the largest city in the state.

 

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