AT&T Tech Support 360Source code standoff in breathalyzer case
Minnesota authorities have missed a court-imposed deadline for turning over the source code for a breath-testing machine at the heart of a a high-profile dispute that recently made it to the state's Supreme Court.
That means now there's a greater chance that charges could be dropped against third-degree DUI defendant Dale Lee Underdahl.
The Intoxilyzer 5000EN is used in more than 20 states, according to the manufacturer.
(Credit: Connecticut Department of Public Safety)The next step is a court hearing scheduled for September 19, Underdahl's attorney, Jeffrey Sheridan, told CNET News.com in a phone interview on Tuesday. At the hearing, Sheridan is expected to ask the judge to throw out any evidence the state had obtained using the the Intoxilyzer 5000EN. If the judge agrees, at least one charge--that his client was driving with a blood alcohol concentration above the legal limit of .08--would likely be dismissed.
Sheridan had predicted in an interview with CNET News.com last month that the Minnesota state public safety commissioner would not supply him with the source code to the device, as ordered by the Minnesota Supreme Court, by the August 17 deadline.
Minnesota Department of Public Safety representatives declined to comment on the case on Tuesday, citing a policy not to comment on pending litigation. Sheridan said the government has made no legal filings explaining why it didn't comply with the deadline.
The state has previously argued it's not entitled to the code because of its confidential, copyrighted and proprietary nature. But the Minnesota Supreme Court in late July concluded that language in the contract between the device's manufacturer, Kentucky-based CMI, and the state indicates the source code belongs by extension to Minnesota. The justices suggested the state must do whatever it takes to enforce that contract, even if it means, for example, suing CMI.
CMI, which bills itself as a leading maker of alcohol-testing equipment, says law enforcement agencies in 40 states and in Canada use its products. Its resistance to giving up its code, however, has already led to charges being thrown out or blunted in recent cases in other states.
CMI representatives did not respond immediately to requests for comment.
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In this case the only way to "interogate" the lab is by having a look at the code. How can we be certain that the beathalyzer was not programmed to adjust it's findings to a higher level?
I think we also must consider the harm that would be done. If the code is released, will it make this device easier to beat? Um, no. That's like saying if I had the code for a Scantron machine, I could get a 100% on any test graded by that method. What about the company who produces these devices? Plenty of safegaurds could be put in place by the court to prevent any proprietary information from leaking. As well as the fact that the software is probably hardware specific.
Look for the state to stop using it in the near future, as they will likely not get another DUI conviction until they either submit the device and the code for testing, or outright stop using it.
There is no downside to allowing the code to be examined. If it passes muster, then they have stronger DUI evidence. If it fails, then the state knows it needs to change or fix the device.
Either way, society wins.
This country should not tolerate the inability to confront ones accuser, nor should it ever want someone to be wrongly convicted.
DUI is such an emotional issue, that the presumption of innocence no longer exists. This can not be tolerated in a free society. The state has to prove its case against the defendant, not the other way around.
Small wonder why so many DUI/DWI cases could be thrown out.