I’ve often reported of the ongoing struggle of defense attorneys across the country to get breathalyzer manufacturers to disclose the secret software that runs their various breath testing machines. Unreliable or inaccurate software code will produce inaccurate blood-alcohol results — and the conviction of innocent citizens. Increasingly, courts across the country are ordering manufacturers to produce the code for defense inspection. See, for example, Judge Orders Software Secrets Revealed (Arizona) and Judge: Divulge Software Code…or Else (Florida).
And just as often, the manufacturers are refusing to obey the court orders or finding ways to circumvent them. See, for example, Breathalyzer Manufacturer Thumbs Nose at Courts (Arizona) and Secret Breathalyzer Software Still Secret (Minnesota). In only one case has a manufacturer complied with a court order – and in that case, experts analyzing the software code for the Alcotest 7110 concluded that it "has to be considered unreliable and untested". See Secret Breathalyzer Software Finally Revealed (New Jersey).
The courts are finally beginning to agree that an accused in this country has a right to see the evidence against him. And since guilt or innocence is increasingly a matter of "trial by machine", an accused citizen has a right to confront his accuser.
However, manufacturers continue to hide what’s inside the "black boxes" — apparently afraid of what will be foound. And they are becoming increasingly clever in their efforts to evade court-ordered disclosure. In Arizona, for example, a court ordered disclosure — but then refused to hold the manufacturer in contempt when its attorney argued that the court had no jursdiction since the corporation did not do any business in Arizona (despite the fact that it was, in fact, doing business by selling the machines to Arizona law enforcement agencies). See Justice vs Profits: Guess Which Wins…Again?
A few days ago, yet another manufacturer found an ingenius way to avoid a court order: drown the accused citizen in information:
Defense Attorneys Dispute State’s Agreement with Intoxilyzer Company
Minneapolis, MN. Jan. 14 – Minnesotans are being routinely and, in some cases, wrongly — convicted of drunken driving charges because of a machine whose operation largely remains a mystery, an attorney told a federal judge Wednesday.
"The consequences being meted out by this instrument … are serious, yet we know precious little about how this machine goes about making its accusation," said Jeffrey Sheridan, a lawyer with the Minnesota Society for Criminal Justice. "We should be able to confront our accuser, and in this case, our accuser is this machine."
He was referring to the Intoxilyzer 5000EN, the primary device Minnesota law-enforcement agencies use to test drivers’ blood-alcohol content. A legal fuss has developed over the machine’s "source code," the computer language that tells the machine how to interpret a person’s breath sample.
Defense attorneys statewide question whether the code works properly, and they sued the state for access to it. The state replied it didn’t have the source code and sued the maker, CMI of Kentucky, for it.
The company claims the code is a trade secret but reached a settlement with the state that ostensibly gives a defendant the right to have his expert witness examine the source code. Defense attorneys claim the agreement’s provisions for the examination make it virtually useless.
In a hearing before U.S. District Judge Donovan Frank on Wednesday, lawyers for the state and CMI argued the settlement should be approved. Sheridan and lawyers for other groups said the settlement would be bad for the state and worse for defendants facing driving-while-impaired charges.
"People who are not impaired … are being thrown in jail because this black box says they’re guilty of a crime," said Charles Ramsay, a criminal defense attorney representing four individuals who object to the settlement. "This black box decides the guilt or innocence of people in Minnesota. Innocent people are going to jail. They refuse to fix it, and they’re covering it up."…
While the agreement allows an expert witness to examine the source code, it also requires the witness to travel to CMI’s headquarters in Owensboro, Ky., to view the code in the form of an 1,100-page printout.
Ramsay told Frank that a computer expert told him that under ideal conditions, it would take up to 90 days to analyze the source code, but under the limits in the agreement, it would take 30 years.
"Their solution would deprive Minnesota citizens of fundamental constitutional rights," Ramsay said. "We just want unfettered access to the source code."
Once again, corporate profits win out over justice and the Constitution.
(Thanks to Doug Hazelton.)