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Saturday, September 13, 2008

Law - Still more on: Florida defense attorneys demand source code of breath analyzers

Updating this ILB entry from March 2, 2006, Kim Smith of the Arizona Daily Star reported today in a long story that begins:

Tucson, Arizona: Defense attorneys scored a major victory Friday when a Pima County Superior Court judge ruled they should be given access to the software that powers a breath-testing machine used on suspected drunken drivers.

For the past several months, defense attorneys throughout the county have been arguing that they should be given the "source code," or software, used in the Intoxilyzer 8000.

The attorneys say the source code is needed to determine whether breath tests administered by the Tucson Police Department and the University of Arizona Police Department are accurate and reliable. (The Pima County Sheriff's Department and the Arizona Department of Public Safety take blood samples.)

The defense attorneys maintain the issue is a constitutional one; defendants have the right to cross-examine and confront their accusers.

Prosecutors have maintained that experts have other ways to determine if the test results are reliable. They also say the source code is a trade secret and shouldn't be disclosed.

On Friday, Judge Deborah Bernini ruled that the source code is not a trade secret. She noted that the president of CMI, the company that manufactures the machine, testified that the Intoxilyzer 8000 is not patented, and neither is its copyright on the source code.

Bernini ordered CMI to turn over the source code to attorney James Nesci, who is the lead counsel on all of the cases.

Nesci was thrilled with the judge's decision, but he doesn't believe CMI will comply. If it doesn't, he said, he intends to ask Bernini to dismiss the 23 felony DUI cases that are currently before her.
"I will bet you any amount of money they won't turn it over," Nesci said. "They've never turned it over to anyone."

More from the story:
Law enforcement officers across Arizona began using the Intoxilyzer 8000 last year, Nesci said.

Police like the device because it weighs half of what its predecessor weighs and can be powered by a squad car's cigarette lighter, Nesci said.

However, unlike the Intoxilyzer 5000, it isn't patented, so defense experts can't obtain the diagrams and source codes needed to figure out exactly how it works, Nesci said. Moreover, the manufacturer will sell the device only to law-enforcement agencies.

Other breath-analyzer companies provide their source codes and will sell their products to anyone, Nesci said.

The source codes are crucial, though, because the Intoxilyzer 8000 sometimes gives "weird" or inexplicable results, Nesci said. "The source code would allow us to see what the actual error was when the machine gets the weird readings," Nesci said. * * *

Nesci said the battle over the source code isn't just a defense ploy. "An inaccurate machine is of no benefit to anyone," Nesci said. "Inaccurate results could mean imprisonment for innocent people and exoneration for the guilty. People have the right to know how these machines get their results."

Pima County attorneys aren't the only ones battling with CMI, the producer of the Intoxilyzer 8000, Nesci said. Six other states have been battling CMI over the source code — Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey.

"CMI has currently racked up over $1.2 million (in fines) in a civil contempt order for not disclosing the source code" in Florida, Nesci said.

The machine also failed to meet precision and accuracy testing in Tennessee, so law-enforcement agencies there are prohibited from using it, Nesci said.

Posted by Marcia Oddi on September 13, 2008 06:54 PM
Posted to General Law Related