If you are arrested for drunk driving, you’ll probably be charged with two crimes. The first is DUI – "driving "under the influence" (sometimes called DWI – "driving while impaired"). If the reading from a breath test is .o8% or higher, the laws of most states rebuttably presume you to be guilty of the crime.
The second crime you will be charged with is driving with a blood-alcohol level of .08% or higher. In this case, there is no presumption: the breathalyzer reading is the crime. And in many states, the reading is presumed to be accurate. See Whatever Happened to the Presumption of Innocence?
Obviously, the accuracy and reliability of these machines — which are run by computers — are critical. Just as obviously, an American citizen accused of these crimes should have the right to question the accuracy of his accuser: the machine. I mean, the Constitution gives us that right, doesn’t it?
Well, as I’ve railed long and hard in past posts, there is this nagging "DUI exception to the Constitution". So, no — you don’t have a right to look into the guts of the machine — its computer software — and see if it’s accurate and reliable. Why? Because the breathalyzer manufacturers refuse to turn it over — citing "trade secrets", but in reality fearing exposure of their junk science. See Secret Software Finally Revealed, about the one case in which the manufacturer was forced to turn over the software — revealing, as suspected, that the primitive code was neither accurate nor reliable (nor was it a "trade secret").
In the past, the courts have gone along with the manufacturers, siding as well with prosecuters who don’t want their all-important breath machines exposed. But in recent years, an increasing number of trial and appellate courts across the country have begun changing this approach. See, for example, Judge Orders Secrets of Breath Machine Revealed, Judge: Divulge Breathlayzer Code – Or Else and Breathalyzer Manufacturer Thumbs Nose at Courts.
On Friday, a state supreme court finally weighed in on the issue….
Breath-Test Ruling Jeopardizes Thousands of State DWI Cases
Minneapolis, MN. May 1 –Minnesota may be forced to drop thousands of driving-while-impaired cases and change the way it prosecutes others in the wake of a state Supreme Court ruling Thursday, prosecutors and defense attorneys agreed.
The state’s highest court ruled that defendants in drunken-driving cases have the right to make prosecutors turn over the computer "source code" that runs the Intoxilyzer breath-testing device to determine whether the device’s results are reliable.
But there’s a problem: Prosecutors can’t turn over the code because they don’t have it.
The Kentucky company that makes the Intoxilyzer says the code is a trade secret and has refused to release it, thus complicating DWI prosecutions…
The Intoxilyzer 5000EN is the standard device used by Minnesota police to determine if a driver is impaired. The state bought 260 of the machines from the manufacturer, CMI of Kentucky, in 1997, and state law presumes the devices’ results to be reliable.
The device is used with nearly eight of every 10 suspected drunken drivers who are tested in Minnesota.
But defense attorneys have argued that if they can’t examine the source code, the computer program that runs the machine, they have no way to tell if the Intoxilyzer is reliable. District judges across Minnesota have handled defense requests for the source code with a patchwork of rulings: Some say a defendant has a right to examine it; others say it isn’t relevant…
The Supreme Court said (defendant Brunner’s evidence) "show that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to Brunner’s guilt or innocence."
(Thanks to Andre)