Second Manufacturer Must Reveal Breathalyzer Secrets

Posted by Lawrence Taylor on October 13th, 2007

As I’ve posted in the past, when you are charged with drunk driving you will be afforded your constitutional right to trial — but a trial by machine.   Quite simply, the law reverses the presumption of innocence and presumes that you are guilty if the machine registers .08% or higher; the judge will instruct the jury they must convict you if you cannot prove your innocence. 

In other words, the accuracy and reliability of this gizmo is rather important.  And what runs the device?  A computer.  What runs the computer?  Software.  What programming code is contained in the software?  The manufacturers refuse to reveal it, claiming profits from protecting “trade secrets” trump a citizen’s right to due process and fair trial.  We must take it on faith that the breath machines made by various manufacturers are accurate and reliable.           

I recently posted about attorneys in New Jersey who were finally able to get the Supreme Court of that state to order the manufacturer of the locally-used breathalyzer model to reveal the machine’s software program.  In that case, the Draeger Corporation was ordered to reveal the software code for their AlcoTest 7110.  Defense attorney Evan Levow turned the code over to a computer laboratory to analyze.  The results are set forth in that post, “Secret Breathalyzer Software Finally Revealed”.  In essence, the lab concluded that there were no “trade secrets” involved, and that:


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…


As I’ve said repeatedly before, the simple fact is that that these machines are unstable, unreliable and inaccurate – and software problems are only one of the many reasons.

Attorneys in other states are also beginning to get the courts to recognize that perhaps defendants have a right to know if the machine which is acting as judge, jury and executioner is accurate.  Another manufacturer of another breathalyzer device is now facing a legal sanction they can understand — loss of profits — if it does not reveal the software code: 


CMI’s Refusal to Disclose Software ‘Source

Code’ Has Stalled DUI Cases 

Sarasota County, FL.  Herald Tribune  –  Facing court fines and the possibility of losing future sales, the company that manufactures the state’s drunken-driving breath-test machines has agreed to give DUI defendants a look at how one works.

What defense attorneys hope to find inside is proof of their suspicions that the software inside the briefcase-size machines makes mistakes while calculating a driver’s blood-alcohol content from a breath sample.

So far, they remain only suspicions. In courts across the country, CMI Inc. of Kentucky has refused to disclose the “source code” of the software in the widely used Intoxilyzer machines.

But now that refusal is hurting CMI in the pocketbook, and the company is agreeing to release the code under certain conditions.

Judges in Sarasota and Manatee counties — where more than 300 DUI cases are stuck in the system — have fined CMI more than $100,000 for not allowing computer experts for the defense attorneys to view the software’s source code.

And Minnesota is considering scrapping CMI machines for a competitor’s devices so prosecutors have results that will not be thrown out of court, according to Minneapolis-area defense attorney Jeffrey Sheridan.

“They’re starting to understand they’re going to lose their market share, and they’re starting to wake up and decide to do something,” said Sheridan, who won a state Supreme Court battle over CMI’s source code this year.

Defense attorneys have challenged the Intoxilyzer machines on the software issue for nearly two years, insisting that defendants should know everything about a machine that could send them to prison.

A blood-alcohol content reading is the most powerful piece of evidence against a drunken driver, and errors in the software could mean drivers never know if the machine is working properly, defense attorneys say.

CMI has refused to turn over the source code, saying it is a trade secret that its competitors can use to learn how it is so successful — and does nothing to prove the accuracy of the machines.


For years, the big corporations have refused to comply with court orders to turn over the software running their machines — and convicting citizens of crimes they may not have committed.  Now that the “trade secrets” shield has been shown to be a fraud, the corporations are facing the ultimate sanction:  loss of profits.  And that trumps everything.

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  • LabMonkey

    “Trade Secrets” shouldn’t be considered a valid argument anyway. In some cases when a contract is reached between the manufacturer and a client (interested state agency), there is a contract which is written. In those contracts usually the custom “code” is the intellectual property of the customer (state), not the manufacturer.

    And due process should always have more weight than “trade secrets”. It’s impossible for a defendant to cross-examine a breath-tester. You simply can not put the little random number generator on the witness stand and ask it questions. It is only by analyzing the source code can the defendant truly cross-examine the breath tester.

  • Georgia.lawyer

    keep up the good work. GA uses intox 5000. Considering filing a FOIA here as well.

    Why not?

  • LabMonkey

    it’s either Wisconsin or Minnesota (I forget sorry) that recently got a favorable ruling on source code with the 5000.

    I think CMI is probably more willing to release that data, to encourage customers to buy new 8000s in case something unfavorable is discovered.

  • jim

    ps,
    I have been waiting for an Alcotest DUI trial for 28 months, and I am going to make my 12th appearance on this charge soon, without as much as a hearing, let alone a trial.

    Constitutional rights as to breath tersting is one thing, and a very important thing, but the rights to a trial are ever higher on the list.

    The NJ Supreme Court ordered all Alcotest DUI Trials to proceed to trial on Jan

  • jim

    10, 2006.

    The State of NJ has choosen to remain in contempt of this court order for all this time, and not only in my case, but probably thousands of cases.

    Each time I have went to court believing I would be trialed that night, only to be sent home being told discovery not complete, because of prosecutor laziness.

    It goes beyong laziness, it is psycological abuse, intentional, and done by the State.

    The lawsuit I will file will start at 10 million dollars.

  • jim

    I forwarded the Chun attorney’s email to the Star Ledger this morning. To the head editor, along with forwarss of my emails, and my latest argument against the Alcotest.

    I wonder if the editor is going to contact this attorney for additional comments on what he had sent me.

    I have been in an almost unbearable pressurized situation for 28 months now, all because the State chooses to ignore ,and be in contempt of, the NJ Supreme Court,….. why should’nt I try to apply some pressure of my own?

    For all practicle purposes all I have done concerning my Alcotest case is writting, writting, and more writting.

    Except for the 3 minutes I got to argue to the Judge, telling the Judge the NJ Supreme Court ordered my case to trial on Jan 10, 2006, and I should have had a trial long long ago. With the JUDGES RESPONSE BEING SHE HAS NO IDEA WHY I HAVNT HAD A TRIAL.

    Riught there, if there was any legal reason for me to not have had a trial, the judge should have, could have, spoke up and said what it was!

    We all know there is no legal reason to not have given me a trial to date.

    All I have done is write, and write, and write…. my whole life has been consumed by this charge and pending prosecution.

    I have wrote over 2000 printed pages on the subject, and that is a lot.

    I would not have wrote one word on this blog site, or to my former attorney, or on other sites, or in emails to other attorneys, contacted the mayor, the attorney general, the aclu, the ethics committee, or the press, has the State obeyed the NJ Supreme Court and given me a trial shortly after they were ordered to by the NJ Supreme Court, on Jan 10, 2006.

    There can be no negative against me because of my writing, I ARGUE, BECAUSE THE WRITING IS A DIRECT RESLUT OF THE STATE’S CONTEMPT OF THE NJ SUPREME COURT IN MY CASE.

    This is because anyone wishing to judge me and the amount i have written must look at the cause, the reason, and see that the State has purposely, intentionaly, caused me so must emotional distress and psycological abuse, that they should be held accountable.

    jim Says: Your comment is awaiting moderation.
    January 20th, 2008 at 12:30 pm Legally, no blame can be put on my writting, as it stands on content, or on quantity.

    Furthermore, no blame of any kind should be put on me.

    tHIS CASE, MY CASE, AND THE aLCOTEST, ARE in the legal arena, and thus legailty must prvail…

    Here is what I mean…

    By law, 100 percent of the burden to go to trial for any case in any municipal court in nj, is 100 percent on the State. It is not even in the slightest way the burden of the defense to go to trial!

    Now, what recourse in the legal arena does a defendant have in my case like mine that has evolved over 28 months, with the State refusing to trial the case on 11 appearances, and probably the 12 appearance coming up?

    Very little. My former attorney, for the first 26 months of case, did not do anything, and i assume it is because there was nothing that could be done. But it wasnt from me not asking him to do something, my 106 emails to him clearly show i repeatedly asked him to try to do something, if we could sue for a trial, or what can be done. nothing was done.

    The only recourse i have had is to write and write and write.

    There is absolutley nothing a defendant can do to force the State and the local court to give TRIAL, EVER,,,,, and they theoreticaly can keep these charges over my head, as an ax, for another 30 years!, calling me into court every 8-10 weeks for the rest of my life!

    This is an outrage to justice and freedom, and fairness.!

    I have faced the State’s metophorical ax 11 times, prpared for trial, and to testify.

    While the ax may be methophorical as a real ax, there are severe consequences of a conviction, includiong but not limited to fininacial, jail, and the inabilitry to work.

    In my case the State has choosen to add to these legal penalities, with severe and overwelming psycological abuse. having me face this “ax” 12 times now, and probably more, maybe even for another 30 years on this same charge.

    So, I write and write and write…..

    If the prevailing speedy trial case LAW, Barker, did not feel that stress and axiety over a pending prosecution was not a valid reson for dismissal or reversal, they would not have included it in the ruling.

    Barker is the holy bible of speedy trial law , if you will, and the 4 elements must be weighed by the Court, fairly, without political considerations.

    Naow in my case here are the 4 elements nailed down

    LENGTH- 28 MONTHS

    REASON- APPEARANT PROSECUTOR LAZINESS, BUT NOT ENTIRLY CLEAR, ANY ANSWER WILL BE NOTED AND APPRECIATED, BUT THERE IS NO VALID REASON, BUT JUST A REASON, WHATEVER THE REASON IS

    SPEEDY TRIAL MOTION – YES, ONLY AFTER 106 EMAILS TO MY ATTORNEY, A MOTIUON WAS PUT IN IN AUGUST 07

    PREJUSDICE- THIS MUCH IS CLEAR, .. JUST THE FACT I HAVE WROTE OVER 2000 PAGES ON THE CASE IN AN INDICATYION OF NOT ONLY PREJUDICE, A WORTD WITH LITTLE MEANING SOMETIMES, BUY SEVERE DISTRESSS AND PSYCOLOGICAL ABUSE INTENTIONALLY CAUSED BY THE STATE.
    ALSO ON THIS NOTE, I DID SEEK PROFESSIONAL HELP AND MADE 8 SESSIONS WITH A PROFESSIONAL COUNSELOR CONCERNING THIS PSYCOLOGICAL ABUSE AGAINST ME.

    ALL 4 elements of barker are nailed down.

    however, the extent of the State’s abuse against me, the extent of the State’s contempt for the nj supreme court, is appararent, and will be the subject of a 10 million dollar lawsuit.

    but , however, before the lawsuit, answers need to be given by the State and the Court in the criminal/traffic side….. and this is where i am stuck, and it looks like i will be stuck til the day i die, as neither the State nor the Court has given any indication they will disist from their abuse, and trial my case.

  • jim

    A very important aspect of the Alcost breath testing instrument is the area under the curve, the peak area of the peak produced by alcohol. I am not sure if they are measuring the “oh” group peak or the “ethyl peak”, but for this argument it doesn’t matter.

    As an analytical chemist with 20 years experience, this visual picture/evidence/document, is just about the most important document there is.

    The picture of the test.

    Picture a straight line across a page of paper 8 inches in width. picture about 6 inches down the line a tall thin triangle rising about 6 inches from the line (baseline), symmetrical in shape, and about 3 millimeters in width at the baseline.

    This is what I call a peak a classic desired peak.

    The amount of area inside the shape of the peak is calculated by a computer program and converted into a number called “counts”.

    What the program does is this, it through its programing, determines when the peak starts and stops. draws a baseline under the peak, then calculates the area in counts , inside the triangle.

    This count of a breath sample is compared to the count of a known standard solution, a mathematical calculation is performed, and a final BAC is determined.

    This is fundamental , most basic, analytical chemistry, for peak based instruments, like an IR in the Alcotest.

    In my career I have revived , looked at, millions and millions of peaks generated from such instruments to determine if the start and stop of the peak was determined correctly, if the baseline was determined correctly, if the peak shape was ok, if the right peak was being used in the calculation, and if there were any interferences.

    Without this picture, it is impossible for Drager, me, you, the state, the FDA, or anyone else in the world, to say the result is accurate.

    In the millions of peaks I have revived in 20 years, I have found a lot of problems along the way.

    The start was determined wrong, the end was determined wrong, the baseline was drawn incorrectly, the wrong peak was used to calculate.

    An instrument can be running fine for 100 samples in a row, have one off, and 100 more good samples. It is just the nature of analytical instruments for this type of analysis, and every peak needs to be looked at and signed off on.

    With the Alcotest there is no picture. We have absolutely no way of knowing if anything looked ok in a breath test.

    Do you understand what I am saying?

    It is not like I am looking for the world here, a simple IR machine that produces a picture is not only common, it is expected, required, taken for granted.

    The cost of the Alcotest is ridiculously high for an instrument that can not even produce a picture of the test.

    To take this one step further, the “counts” for each standard and sample would be listed on the screen and printout, and an example calculation would be typically performed for the first sample by hand,vto ensure the program was calculating correctly, and available to perform for every sample tested.

    All of this is a no brainier.

    Do you understand?

    The process that calculates the area under the curve is called integration.

    Unless their is a visible hardcopy picture of the peak showing the start, stop, and baseline of the integration…. showing the peak, at the proper , in the case, wavelength, but in HPLC retention time, and it is reviewed to determine the peak shape was ok, the correct peak was used, there are no interferences, and the integration had the right start-stop-baseline, there is absolutely no way to say beyond a reasonable doubt any breath test result is correct.

    A key aspect in the Alcotest case are the manuals supplied by Drager to the Chun defense teaM, which one of the attorneys, not my former one, was kind enough to supply me with last summer for review….which I did review….

    In these manuals are example pictures of the peaks produced by an IR scan for alcohol.

    The methodology clearly shows a baseline and peak for the analysis , as I described earlier.

    My question to Drager would have been, how do you know your instrument, the Alcotest, produces these peaks, integrates them correctly, every time, 100% without flaw, drawing a perfect baseline to the peak every time, with a perfect start and stop tic marks, and thus perfect integration.

    The answer is they really do not know. They may have some hook up at the factory but nothing was presented at the hearings. The most important aspect though is, we do not know for each and every breath test the integration and result are flawless.

    Even a slight movement of the baseline drawing on the slightest wrong incline, or a start or stop of the peak that is even the slightest up on the peak rise or fall, will create the wrong result. Maybe the start or stop was too soon or too late and occurred in valley beneath the baseline, thus causing a bad result.

    There is no way to ever now how much off the mark it is without seeing the picture.

    Most instruments have software where you can change the integration parameters to force the instrument to properly integrate certain peaks, however, in doing this, the standards, and bracketing standards, must be under the same parameters, and this reprocess of results must be documented with explanation as to why.

    I am telling you, with 100 percent certainty, that the picture of analysis by analytical instruments of the nature of the Alcotest is the most fundamental document to support the result!

    yet is doesn’t exist!

     
    What really gets my goat, if you will, is that this really shouldn’t be up to me to point out such fundamental basic aspects of analytical chemistry.

    This is something that Drager should know, probably does know, the State should know, probably turns a blind eye to, defense attorneys have no idea about, … and only analytical chemists that were tested on it and charged with a dui care about.

    One can not even begin to validate an instrument like this in all seriousness, one that can take away a persons livelihood, freedom, driving privileges, respect, without having the picture.

    This is not like the measuring of the ph in your pool water.

    This is exact analytical chemistry science. Exact also made by statute, in virtue of the State differentiating between 0.07, 0..08, 0.09. 0.10% BAC >>

    To not be able to even begin to validate an instrument like this, where the result is so important, and basic IR instrumentation allows for it, because Drager didn’t engineer it to produce a picture with the counts, is really unbelievable, and wrong, and not just.

    What can I do to make people understand?

    I would like to be able to get in the above argument in my particular dui case.

    I will have to somehow figure out with my attorney how exactly we can get this argument on record, in order to have an appeal with this basis…. keeping in mind any appeal I  have would be based on many things including speedy trial and lack of due process, but also for this analytical argument to also come on record so it can also be appeal able.

    I don’t know what the case law says on this, but I certainly hope to be my own expert witness as to analytical results of peak based analysis by software driven analytical instruments.

    This on appeal, would be the new “Chun”.

    This fundamental aspect of this type of analysis, as I have described above, was not the main attack of the Chun defense team, and should have been.

    In my opinion they could have won on this argument alone.

    It is not a question of what Alabama is doing, as the Chun case seemed to rely on, or what other States are doing, or what other manufacturers of breath testing equipment are doing.

    It is a question, and case, of such fundamental basic analytical chemistry standards, as they exist today in NJ.

    It is not nuclear science, it is not rocket science, it is so basic, and so fundamental, and so low level, that analytical chemists like me, with just a basic college education, and low salary, take for granted.

    Producing a picture of an IR scan and its integration, is so basic and fundamental, it is equivalent to a auto mechanic checking the air in someone’s tire ( as far as it is being done),… that is to say NOT THAT IT IS EASY TO DO, BUT IT IS JUST SOMETRHING SO BASIC, SO FUNDAMENTAL, IT IS TAKEN FOR GRANTED IN THE ANALYTICAL WORLD.

    The science is exact, the analysis is exact, the statute is exact,  so what are we missing?

    We are missing the most fundamental piece to the puzzle, the actual picture!

    Before they make any political compromises as to the Chun case, understand one thing, my arguments are valid, not argued in Chun, and will be put up on appeal all the way, as the new Chun, if my case is not dismissed or acquitted after trial.
     
    There is no way this Alcotest, an analytical instrument, capable of taking away someone’s freedom, should be used without supplying the picture of the IR scan and the counts from the integration.