November 3, 2005 3:10 PM PST
Breathalyzer source code must be disclosed
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A three-judge panel in Sarasota County said that a defense expert must have access to the source code--the secret step-by-step software instructions--used by the Intoxilyzer 5000. It's a simple computer with 168KB of RAM (random access memory) that's manufactured by CMI of Owensboro, Ky.
"Unless the defense can see how the breathalyzer works," the judges wrote, the device amounts to "nothing more than a 'mystical machine' used to establish an accused's guilt."
The case, one of the first to test whether source code used in such devices will be divulged, could influence the outcome of hundreds of drunk-driving prosecutions in the state. So far, Florida courts have been split on the topic, with some tossing out cases involving breath alcohol tests and others concluding that the information about the machine's workings should remain a trade secret.
In one similar 1988 case, Florida defense attorneys discovered that the police had mechanically modified a breath test machine so much that its results were no longer valid and could not be admitted as evidence in a prosecution.
The Sarasota judges didn't require the public disclosure of the source code. Rather, they ordered that it must be given to a defense expert who will keep it in confidence and return it when his analysis is complete. That analysis could show bugs or reveal that the code was modified after the Intoxilyzer was certified for use by the state--meaning the device's output could not be used in court.
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If something can be proven to work on a double blind, audited test, what's teh point in knowing how it works?
If we declare double blind tests aren't enough prove then we'll have to demonstrate theorethically the workings of every simple drug on the market (something that's just plain impossible for even the simplest drugs).
This is especially futile since a good coder can code things so they appear normal to even the best programmers and still hide malicious behavior. The fact that it can be done on a short, 20 line program (see http://graphics.stanford.edu/~danielrh/vote/vote.html for some examples) indicates that this should be even easier to do in a more complex program.
This seems to me like the consequence of a defense lawyer questioning the system as the means to take some drunk driver out of jail.
Device manufacturers cannot reasonably be expected to exhaustively test and provide lifetime certification for every single unit produced. Nor can the State be expected to pay for endless trials in which each unit must be submitted to an *expert* to get an opinion on whether or not it is correctly constructed, especially if it contains software. And if a new version of the software is introduced into the field, does the comedy begin all over again?
The software question is a red herring. The relevant question is, Does the unit perform within specifications? And there should be a rapid and inexpensive means of answering this question. Speed guns have been down a similar road. Then the argument can shift to specifications which pertain to all units and away from ambiguous questions pertaining to a single unit.
What we have here is variant n on the OJ defense regarding DNA. "What? You mean there is a possibility that the DNA belonged to someone other than the accused? How can you say there isn't some doubt?"
The law imposes a vague, undefined term called *reasonable doubt* as a basis for jury verdicts. Smart defense lawyers, and not so smart, have learned that if they can confuse just part a jury sufficiently - not so difficult these days - they can parlay the confusion into doubt and a not-guilty verdict or hung jury. Defense then becomes primarily a matter of introducing a sufficient amount of chaff into the proceedings to create confusion.
The core issue in a jury trial is never really detecting *true* guilt or innocence. It's effective manipulation of the jury. That's a principal reason why defendants request jury trial in the first place rather than submitting arguments to a judge. So here we have just another instance of tired, but often effective, tactics disguised as a search for truth and justice.
They should be forcing those using the systems or manufacturing them to be able to demonstrate that they WORK. In such a demonstration they should show the principles behind how it works and that will show logic flow of the program, which should be enough.
Next time I get a speeding ticket I'll ask that the "source code" to the radar gun be disclosed to my lawyer... It just opens up a BIG can of worms and sets an entirely new precident that we don't want to see bog down the courts.
the defense attorneys' desperate gambit. The source code is
irrelevant; what counts is performance. Is the breathalyzer
accurate or not? There's where the attention should have been
placed,
I suppose that DWI drivers need legal rights, like the rest of us.
But DWI's should be treated more seriously, with loss of the
automobile and temporary suspension of a driver's license on
the first offense, loss of driver's license and automobile on the
second offense, and loss of the automobile and a long jail time
on the third.
Too bad we can't hang the defense attorneys who get a habitual
DWI driver off the hook.