DUI charges dismissed because company won't disclose Breathlyzer code?

[SirFozzie]

Link to article

SANFORD - Hundreds of cases involving breath-alcohol tests have been thrown out by Seminole County judges in the past five months because the test's manufacturer will not disclose how the machines work.

All four of Seminole County's criminal judges have been using a standard that if a DUI defendant asks for a key piece of information about how the machine works - its software source code, for instance - and the state cannot provide it, the breath test is rejected, the Orlando Sentinel reported Wednesday.

Prosecutors have said they do not know how many drunken drivers have been acquitted as a result. But Gino Feliciani, the misdemeanor division chief in the Seminole County State Attorney's Office, said the conviction rate has dropped to 50 percent or less.

Seminole judges have been following the lead of county Judge Donald Marblestone, who in January ruled that although the information may be a trade secret and controlled by a private contractor, defendants are entitled to it.

``Florida cannot contract away the statutory rights of its citizens,'' the judge wrote.

Judges in other counties have said the opposite: The state cannot turn over something it does not possess, and the manufacturer should not have to turn over trade secrets.

[Vinatieri for Prez]

I think if you are convicted by a machine, you should have the right to know how the machine works in order to prove your innocence. If the state chooses to use a machine of which it does not possess working information, then it has made a conscious decision to do so and faces the prospect of being unable to convict because of it. I agree with the judge that says the state is effectively contracting away its citizen's rights.

[Mr. Wednesday]

It seems to me that how it works is not really all that important as long as it can be proven to be accurate.

[gottimd]

Maybe this guy can use this as a defense.

[BrianD]

This is why they have experts. As long as someone considered an expert on the machines can honestly vouch for their accuracy, that should be enough. If they need to make the source code available to everyone served with a DUI, then they need to put my next murder trial on hold until I have enough time to understand how DNA works and how all of the various tests are run.

[Blackadar]

Originally Posted by BrianD

This is why they have experts. As long as someone considered an expert on the machines can honestly vouch for their accuracy, that should be enough. If they need to make the source code available to everyone served with a DUI, then they need to put my next murder trial on hold until I have enough time to understand how DNA works and how all of the various tests are run.

But experts can be presented on BOTH sides. And without the code of the machine to study, how would a defense expert refute the results coming from that machine?

[gstelmack]

Originally Posted by Blackadar

But experts can be presented on BOTH sides. And without the code of the machine to study, how would a defense expert refute the results coming from that machine?

Rigorous, peer-reviewed scientific study of the machine to determine its accuracy. Doesn't matter how it works as long as it works.

It would seem to me that the bigger issue would be how the individual machine used to test the defendant was working. Hate to be convicted by a broken breathalyzer...

[John Galt]

Originally Posted by gstelmack

Rigorous, peer-reviewed scientific study of the machine to determine its accuracy. Doesn't matter how it works as long as it works.

It would seem to me that the bigger issue would be how the individual machine used to test the defendant was working. Hate to be convicted by a broken breathalyzer...

The legislature could certainly pass a law for the first issue. Until they do, I think the court is basically right. A defendant needs to be able to question the veracity of the test and without access to the source code, that is hard for him or an expert on his behalf to do. There is no reason that the company couldn't ask that the records of the source code be kept confidential. The fact that they won't disclose at all is just crazy.

[stevew]

Its fine if you want to throw out the first few cases cause this information is not made available. After that, tho, the county/state should have moved towards blood testing instead, or Breathalyzer testing if a defendant waives his right to challenge the validity of the test(or simply the nature of the source code) in the future. And the should definately have figured out a way to get this information to be made available as quickly as possible. I understand legal loopholes exist, but they should move towards closing them as quickly as possible.

[miked]

Originally Posted by BrianD

This is why they have experts. As long as someone considered an expert on the machines can honestly vouch for their accuracy, that should be enough. If they need to make the source code available to everyone served with a DUI, then they need to put my next murder trial on hold until I have enough time to understand how DNA works and how all of the various tests are run.

There really is no proprietary test for DNA. Information on PCR machines and all DNA stuff is readily available. They have a right to know how the machine works since it's the main source of the evidence.

[gstelmack]

Originally Posted by John Galt

A defendant needs to be able to question the veracity of the test and without access to the source code, that is hard for him or an expert on his behalf to do.

But couldn't the defendant's lawyers conduct their own tests to show how the Breathalyzer could fail? Don't lawyers do this all the time in other types of cases?

[John Galt]

Originally Posted by gstelmack

But couldn't the defendant's lawyers conduct their own tests to show how the Breathalyzer could fail? Don't lawyers do this all the time in other types of cases?

I guess you could run the test with a range of suspects and give control blood tests, but that seems to be a pretty expensive burden to put on defendants. Even then, I think there is a right to confrontation issue with seeing the source. Even though the breathalyzer isn't a witness, it acts as one through the cops and you have to be able to argue against it. I'm not sure I even understand the rationale for keeping the source code secret (especially under a confidentiality order).

[Blackadar]

Originally Posted by gstelmack

Rigorous, peer-reviewed scientific study of the machine to determine its accuracy. Doesn't matter how it works as long as it works.

It would seem to me that the bigger issue would be how the individual machine used to test the defendant was working. Hate to be convicted by a broken breathalyzer...

Rigorous (independent) peer review would suggest that the code has been released. Therefore, there should be no legitimate reason not to issue the code. To protect it, it should be issued with a strict confidentially clause.

Originally Posted by gstelmack

But couldn't the defendant's lawyers conduct their own tests to show how the Breathalyzer could fail? Don't lawyers do this all the time in other types of cases?

Possibly, but that doesn't mean the specific Breathalyzer used on the defendent could fail. In addition, without the code, constructing the particular parameters of how it could fail would be much more difficult.

Essentially, the machine is being used in large part to convict the defendant in these cases. Essentially, the test of the machine is being presented as gospel. Since it is such an integral part of the conviction process, the defense should have an equal opportunity to understand and therefore refute the test. That equal opportunity is virtually impossible without knowing how the machine works. And to understand that, I think you need the code.

[Arctus]

Don't they follow up the breathlyzer with an actual blood test (if warranted) in Florida?

[lungs]

Originally Posted by Arctus

Don't they follow up the breathlyzer with an actual blood test (if warranted) in Florida?

That's what I was thinking. Breathalyzers can be inaccurate especially if the person just stopped drinking. I once blew over a .40 without even being drunk.