August 9, 2007 5:23 AM PDT

Police Blotter: Defendant wins breathalyzer source code

Police Blotter is a weekly News.com report on the intersection of technology and the law.

What: Drunk driving defendant says he needs the source code to the Intoxilyzer 5000EN to fight the charges in court.

When: Minnesota Supreme Court rules in his favor on July 26.

Outcome: Source code will be turned over to defense attorneys.

What happened, according to court records and other documents:
When Dale Lee Underdahl was arrested on February 18, 2006, on suspicion of drunk driving, he submitted to a breath test that was conducted using a product called the Intoxilyzer 5000EN.

During a subsequent court hearing on charges of third-degree DUI, Underdahl asked for a copy of the "complete computer source code for the (Intoxilyzer) currently in use in the state of Minnesota."

An article in the Pioneer Press quoted his attorney, Jeffrey Sheridan, as saying the source code was necessary because otherwise "for all we know, it's a random number generator." It is hardly new technology: One criminal defense attorney says the Intoxilyzer is based on the antique Z-80 microprocessor.

A judge granted the defendant's request, but Michael Campion, Minnesota's commissioner in charge of public safety, opposed it. Minnesota quickly asked an appeals court to intervene, which it declined to do. Then the state appealed a second time.

What became central to the dispute was whether the source code was owned by the state or CMI, the maker of the Intoxilyzer.

Minnesota's original bid proposal that CMI responded to says that "all right, title, and interest in all copyrightable material" that CMI creates as part of the contract "will be the property of the state." The bid proposal also says CMI must provide "information" to be used by "attorneys representing individuals charged with crimes in which a test with the proposed instrument is part of the evidence," which seems to include source code.

Campion's office, on the other hand, claims the source code is confidential, copyrighted and proprietary. It has asked for what's known as a "writ of prohibition" barring the source code from being released.

The Minnesota Supreme Court rejected the request, saying "a writ of prohibition is an extraordinary remedy and is only used in extraordinary cases."

This isn't the first time breathalyzer source code has been the subject of legal scrutiny. A Florida court ruled two years ago that police can't use electronic breathalyzers as courtroom evidence against drivers unless the source code is disclosed. Other alleged drunk drivers have had charges thrown out because CMI refuses to reveal the Intoxilyzer source code.

Excerpt from Minnesota Supreme Court's ruling:
The district court ordered the production of the "complete computer source code" for the Intoxilyzer 5000EN. In support of its order, the district court found that under the contract between the state and CMI, the state owned the source code for the Intoxilyzer 5000EN. The court of appeals concluded that the district court's finding was not clearly erroneous given the concession in the state's petition seeking the writ of prohibition that it owned that portion of the source code created exclusively for the Intoxilyzer 5000EN...

Having carefully reviewed the record presented and the arguments of the parties, we conclude that we cannot decide the copyright issues raised. Although the parties direct us to copyright law regarding works for hire and derivative works, they provide only a superficial application of that law to the facts of this case. Perhaps that is because the factual record before us is inadequate, thereby making any determination regarding either copyright theory impossible.

Resolution of this issue, however, does not require us to apply federal copyright law because we also conclude that the commissioner has failed to meet his burden of demonstrating that the information sought is clearly not discoverable and that he has no adequate remedy at law. While on the one hand the commissioner argues that ownership of the source code for the Intoxilyzer 5000EN is to be determined under federal copyright law and that under that law he does not have possession, custody or control of the source code, on the other hand he concedes that the state owns and thus controls some portion of the source code. That concession is supported by the express language of the RFP granting CMI the right to supply the Intoxilyzer 5000EN to the state.

Further, given the express language of the RFP that requires CMI to provide the state with "information to be used by attorneys representing individuals charged with crimes in which a test with the (Intoxilyzer 5000EN) is part of the evidence" when production of the information is mandated by court order "from the court with jurisdiction of the case," it is not clear to us that the commissioner is unable to comply with the district court's order. Accordingly, we cannot conclude that the district court ordered the production of information that is clearly not discoverable...

We do not agree that the commissioner lacks adequate remedies at law. As discussed above, irrespective of whether the state owns any portion of the source code, CMI agreed, in the RFP, to provide the attorneys representing individuals charged with crimes "in which a test with the (Intoxilyzer 5000EN) is part of the evidence" information necessary to comply with a court's order. We conclude that the commissioner's ability to enforce its contract with CMI constitutes an adequate legal remedy.

None of the four circumstances justifying the issuance of a writ of prohibition...are present in this case. We, therefore, hold that the court of appeals properly denied the commissioner's petition for a writ of prohibition.

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80 comments

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Accepting reponsibility
Someday, somewhere, someone will step up and say, "Yes i was a ******* and drove drunk, i will accept the consequences of my actions and recieve the just punishment." The federal court should make drunk driving attempted murder. How many people have died and been permanantly injured due to the people who think they can handle it.
Posted by njt07 (3 comments )
Reply Link Flag
What on earth...
...does this have to do with this story?

Nobody's disputing that drunk driving is a serious offense, but those accused of it have just as much right to defend themselves in court as everyone else.
Posted by devbost (82 comments )
Link Flag
Corporates must show responsibility as well
As pesky as the Bill of Rights can be to swift justice and severe vengeance, I do remember something about the the accused having a right to face their accuser. If the Intoxilyzer uses buggy firmware that results in inaccurate readings, then the accused has every right to question it. The company that makes the Intoxilyzer must be held responsible for its actions as well. Someday, somewhere, some company will step up and say, "Yes, we knew our product was faulty. But we have shareholders who will sell our stock in a heartbeat if we miss our mark in any quarter."

Holding both the accuser and the accused responsible for their actions is what helps create a society based on the rule of law. Otherwise, we'd be a police state. I for one prefer the former.
Posted by irondog1970 (821 comments )
Link Flag
i agree somewhat
the problem is you can blow .08 blood alcohol by gargling with listerine mouthwash or a cold beer.

i think they should raise the blood alcohol level to maybe .10 or .11 and then not plea bargain. better yet do it by weight to alcohol.

the system isn't set up to save lives. it's set up to the state's advantage. like confiscating cars and officers do get a commission on traffic citations you know.

in my drinking days i witnessed people's lives destroyed by the ideology that a 250lb plus man is impaired at .08. i can't in good concience ruin people over hysteria.

personally i think bars should be outlawed. buy your embalming fluid and puke on your own floor.
Posted by nedmorlef (49 comments )
Link Flag
Well thought out eh?
This is a well thought out statement. While were at it, lets make taking your kids to McDonalds attempted murder too. I mean how many people have died and been permanently injured due to heart disease created by cholesterol clogging the arteries. I'd care to bet quite a bit more, eh?
Posted by pcailey1 (1 comment )
Link Flag
Courts
No federal court in the United States is empowered to make law. That power resides only with the Congress of the United States. Remember, we have three branches of government. Each has its own exclusive functions.
I don't know of any state court that makes law, either.
Posted by zevgoldman (2 comments )
Link Flag
well this guy in particular yes he deserves it. however the amount of punishment for just having a few beers and then getting picked up is ridiculous. I am sorry but .08 is not so drunk that you are running over children drunk.
Posted by steve4pro (1 comment )
Link Flag
Your opinion smells of rotten swine.
Posted by falsedrunk (1 comment )
Link Flag
and the people win another one
I am glad to hear that source code for detecting criminal behavior is starting to be released in a court of law. I have no respect what-so-ever for drunk driving or drunk drivers. On the other hand if there are no checks and balances for devices that can determine guilt or innocence then some innocent persons can become victims of their own tax-paid justice system.

The fact that the 'breath-o-matic' is based on a z80 microprocessor is a laff at best. They might as well use my commodore 64 playing jumpman...

_s
Posted by squidburns (7 comments )
Reply Link Flag
Does not require speed.
My guess is that this device is just some sensor feeding a DAC. 32 samples per second would do great for this.

The question I ask myself is, "Why would they need custom software?". 99 out of 100 times off the shelf solutions work best.

I would like to see the software myself I would bet that it is under commented and has lots of stuff like "if (0==1) {....}
Posted by ralfthedog (1589 comments )
Link Flag
Neither Here nor There
Your comments though valid, don't really fit the topic.

The issue is the source code of the machine that tests if the guy was drunk or not. By the law, he was or wasn't. The machine needs to be accurate.
Posted by Renegade Knight (13748 comments )
Reply Link Flag
source of ethics
chemical analysis of blaood alcohol content has been being done since before 1800.
the only differences from the "antiuqe" s&w 900 that have been implemented, at increasingly high tax-payer expense are technolgies to remove operator interference.
the computations are high school chemistry.
at some point technology is about communication, not complication.
Posted by bridge solution (42 comments )
Reply Link Flag
Before 1800?
That's a rather absurd claim. You need to cite your sources on that one. Before 1800 science hadn't even identified carbon as an element, nor was there anything like quantitative analysis.
Posted by Cpl_Punishment (7 comments )
Link Flag
That Z80
Is a great chip for a lot of devices that don't need a lot of processing power.

I agree, it's a good thing the source code is out. As an Engineer everthing I do right down to my calculations can be called into question in a court. Software and the professionals who right it are no different. Even if they think they are.
Posted by Renegade Knight (13748 comments )
Reply Link Flag
Renegade Knight
As an Engineer (you didn't specify what kind) I beleive people "write" programs... not "right" them..
you missed a few commas, as well.....
Sounds like too many "edumacated professionals" I have to deal with on a daily basis in the construction industry; (that I have to correct in the field.)
GO BOOK SMARTS!!!!
(No field experience!!!)
Posted by jasper89408 (2 comments )
Link Flag
Write not right
You are an Engineer and you can't even spell WRITE correctly. That is scary!
Posted by cpopken (124 comments )
Link Flag
Opens Up Whole New Can Of Worm!
What's next?

Radar Gun software the next time someone gets a ticket?

Traffic Lights software the next time someone claims it short-cycled on them and that's why they ran it?

C'mon this is a story about a drunk driver that actually got caught and is fighting for his sorry life with a defense attorney trying to make a name for himself.

Determining if someone is legally drunk at the scene is not that hard to determine these days.

US law should MANDATE a blood test on the spot to go along with this breathalyzer test to put an end to this issue.
Posted by bkblair (15 comments )
Reply Link Flag
Except it's needed
They've already shown that the ticketing area for some of the lights is *BEHIND* the stop line, so you could have stopped and still gotten ticketed.

Code used for enforcing laws *must* be made available. Otherwise you lost the right of facing your accuser.
Posted by rpmyers1 (15 comments )
Link Flag
how bout we constitutionalize our laws again
i haven't drank in 10 years and i can't pass the physical part of a field sobriety test.
stop forcing blood,hair and urine from the body which, is unconstitutional no matter what a politically correct supreme court says. then, just outlaw any aroma of alcohol on the breath or in the automobile. seal all containers and make it a violation to transport a broken seal.
outlaw bars and by the drink alcohol.
essentially what they have done is set up a complex money making system for the state and insurance companies and are doing nothing to save lives or help people. which is basically what the war on drugs is all about.
Posted by nedmorlef (49 comments )
Link Flag
This country is nuts
We the right to examine the source code on breathalizers, but the source code on voting machines, the very foundation of our democratic principles, is "proprietary" and may not be examined. Don't worry, the extreme right wing owners of the voting machine companies don't have any interest in the outcome of the elections!
Posted by Clouseau2 (329 comments )
Link Flag
This country is nuts
We the right to examine the source code on breathalizers, but the source code on voting machines, the very foundation of our democratic principles, is "proprietary" and may not be examined. Don't worry, the extreme right wing owners of the voting machine companies don't have any interest in the outcome of the elections!
Posted by Clouseau2 (329 comments )
Link Flag
Re: Opens Up Whole New Can Of Worms
I disagree. I think that I have a right to examine how the breathalyser calculates how intoxicated I am.

Roadside blood tests? Yeah, I could see that going south real fast. People could argue with the chain of custody on the blood sample as it goes to the lab, or that it was contaminated, or that they got an infection from having their blood drawn on the side of a road.
Posted by sholmes01 (1 comment )
Link Flag
Mandate Blood Test
Most States do require that you submit to a blood test if it's requested. The state may not request one. If they did, the defendant would have the right to the source code to the software running the equipment that measures the blood alcohol level.
Posted by Renegade Knight (13748 comments )
Link Flag
This country is nuts
We the right to examine the source code on breathalizers, but the source code on voting machines, the very foundation of our democratic principles, is "proprietary" and may not be examined. Don't worry, the extreme right wing owners of the voting machine companies don't have any interest in the outcome of the elections!
Posted by Clouseau2 (329 comments )
Reply Link Flag
Precedent:
The precedent set by this case may very well open up firmware for other things like voting machines.
Posted by Renegade Knight (13748 comments )
Link Flag
But is it?
Most states DUI/DWI laws refer to "Blood Alcohol" not "Breath Alcohol". Each person has a blood alcohol to breath alcohol ratio. The average (mean) is 1:2100. The Intoxylizer assumes that this mean ratio is everyone's ratio. In reality this is nothing more than an average. In fact the Nebraska Supreme Court recognized this back when a Commodore 64 was "cutting edge" technology.

Nobody is bleeding into the intoxylizer.
Posted by casanavelaw (2 comments )
Reply Link Flag
All breath testing is based on a lie!
Most states DUI/DWI laws refer to "Blood Alcohol" not "Breath Alcohol". Each person has a blood alcohol to breath alcohol ratio. The average (mean) is 1:2100. The Intoxylizer assumes that this mean ratio is everyone's ratio. In reality this is nothing more than an average. In fact the Nebraska Supreme Court recognized this back when a Commodore 64 was "cutting edge" technology.

Nobody is bleeding into the intoxylizer.
Posted by casanavelaw (2 comments )
Reply Link Flag
oops
misspelled believe.
Posted by jasper89408 (2 comments )
Reply Link Flag
"Drunk Driving" IS NOT the issue.
NO ONE is advocating "drunk driving". Nor, is ANYONE truly excusing, or minimizing the dangers of "drunk drivers".

So, that is, simply, NOT the real-issue. Anyone that keeps harping on that point, in this case, is clearly trying to confuse the REAL issue with a blatant RED-HERRING, ...or has some serious, personal, comprehension-problems.

The simple fact is that "citizens" DO have a "right" to question automated-techniques used by "law-enforcement" to obtain "criminal-convictions". THAT, is what was decided by this court... NOT innocence, nor guilt, nor moral-responsibility, nor societys right to protect itself from dangerous-criminals.

And, I totally agree with this ruling. The, very real, nightmare of "police-officers" being allowed to effectively point a -magic box- at you and obtain a virtually unquestioned "conviction"... is an absolute abomination to America, Freedom, Justice, or any legitimate form of "due process".

It DOES NOT mean that the "guilty" will walk-free... It merely insures that the innocent are treated fairly.
Posted by Had_to_be_said (384 comments )
Reply Link Flag
Breathalyzer inaccuracy.
I've played around with one of the breathalysers the police use, and it was off a lot of the time. The amount of alcohol on your breath does not equal your intoxication level.

I would take a big sip of wine, blow into it, and it would register a .60, which is death. I feel that we must release the source code so we know the methods in which we are being arrested. If we allow ourselves to be filmed, then there should be some transparency on the law enforcement end as well.
Posted by lewissalem (167 comments )
Reply Link Flag
Breathalyzer inaccuracy
I'm not sure which instrument you were playing around with, but I'd have to disagree. The Intox5000 *is* accurate. If you take a "big sip" of wine and blow into the instrument, you would be violating the testing procedures. The officer must verify the subject has not taken anything by mouth for at least 15 minutes. Otherwise, there would be a slope error. I've used the Intox5000, the Intox8000, the old PEI, and the Auto-I. These things are accurate, but the officer has to be trained to give the test. They just don't shove a tube in your face and tell you to blow into it.
Posted by md1700 (1 comment )
Link Flag
Need to understand how to preform testing
The first thing I noticed was you did not follow the instructions which came with your breathalyzer or did not receive them. You are not suppose to take a sample immediately after taking a drink because it will read to high as your result showed. You need to wait 20 minutes after drinking to get the best sample/ result. Read the Manual
Posted by kens519 (1 comment )
Link Flag
These things are inaccurate
I drive for a car service company, and many of our clients have DUI's on their record. Most people tell me nightmare horror stories about their experience when getting pulled over and having to blow in a breathalyzer. Often people are asked to blow into them several times until the police officers get the "number" that they want before they actually arrest them. Some of my clients have blown into those things anywhere from 4 to 7 times, and THEN they got the handcuffs and were arrested. These things are totally inaccurate. The only true way to determine someone's BLOOD alcohol level, is to test, well duh! their BLOOD!!!
Posted by jimbothedriver (7 comments )
Reply Link Flag
This DD is In Jail Today Based Only On Common Sense
<a class="jive-link-external" href="http://www.star-telegram.com/news/story/197292.html" target="_newWindow">http://www.star-telegram.com/news/story/197292.html</a>

Let's hope there's more and more of this occuring.
Posted by bkblair (15 comments )
Reply Link Flag
Death
You everything changes when that drunk driver runs over one of your family members and kills them...Then its why didn't the police do something to get this drunk off the road. I want y'all to remember that at one point in time you tied our hands and took away our ability to do so. Remember this when you are at the grave site of one of your love ones that has been murdered by a drunk driver...
Posted by Zarr257 (1 comment )
Reply Link Flag
What?
This has to do with source code how?
Posted by dah1113 (1 comment )
Link Flag
And too many innocent people go to jail...
I would agree that we should punish drunk drivers. But, what if there are proven flaws in the software?

Making the source code available will either help to prove it's very accurate or prove that it is not.

Seems reasonable to me.
Posted by paulej (1261 comments )
Link Flag
just because YOU'RE an idiot with no convictions
... doesn't mean i am.

my opposition to the death penalty doesn't change just because someone i know is murdered.

either something wrong or right... just because something happens to ME doesn't change that.

oh, and you're an idiot. whoops, i said that already. but really... idiot.
Posted by muskratboy (349 comments )
Link Flag
Awesome
This is a great win for defense attorneys and defendants across the nation. Finally CMI is forced to cough up the source code and let everyone know how they have been arriving at their bogus conclusions. They won in Florida and now they've lost in MN. Jeffrey Sheridan is a terrific lawyer with the balls to take on this corrupt system. Kudos to him and all who continue to fight for justice. Now what is done with the source code remains to be seen. Maybe it will be completely clean and full of trustworthy algorithms, but I believe not. This company has been scamming the nation for a long time and deserves exactly what it's getting, full disclosure. There is no reason to keep anything secret in a court of law. We're after the truth in the final analysis right? We're not in the business of filling up MADD's overly fat and arrogant pocket-books are we? I thought not...
Posted by magoo_jones (3 comments )
Reply Link Flag
Not as many as you think...
<a class="jive-link-external" href="http://www.duiblog.com/2007/07/30/most-dangerous-drunk-drowsy-or-distracted/" target="_newWindow">http://www.duiblog.com/2007/07/30/most-dangerous-drunk-drowsy-or-distracted/</a>
Posted by magoo_jones (3 comments )
Reply Link Flag
yes, yes, we all know you don't support drinking and driving everybody
seriously, i think we can do without every freaking person throwing in the "of course i don't condone drinking and driving."

yes, and i don't condone burning kittens. or axe murder. or axe murdering kittens.

let's just all ASSUME that most people aren't condoning DUI. i'm sure we can agree that we can debate this issue without thinking DUI is a peachy keen idea.
Posted by muskratboy (349 comments )
Reply Link Flag
Speeding tickets
This opens the door completely to challenge any speeding ticket you may have gotten ever.
Posted by toomchstout (11 comments )
Reply Link Flag
Even with the source code
How do you determine it is accurate? And to what level does it need to be accurate for the conviction to be upheld?

Proving a program does what it is supposed to do is the hardest branch of computer science.

It's likely a small piece of embedded software, written in Z-80 assembly language, with some lookup tables to match sensor inputs to BAC outputs.

If so, then the defense could challenge the calibration tables.

So, where does this end?
Posted by bluemist9999 (1020 comments )
Reply Link Flag
comment
It is time for people to step up and admit when they are wrong.
Too much he said she said bullsh*t
Posted by k6023 (1 comment )
Reply Link Flag
To all the people that claim these devices are accurate and drunks are just looking for a way out of a DUI. Yes, these devices are accurate but only when properly calibrated, and instruments can malfunction between calibrations, if not there would be know purpose in calibration. Just because there is a certificate saying someone calibrated the machine doesn't prove that the procedures were done properly and that the machine hasn't had a part fail since, even though if it was just a week since it was calibrated. Also to many people could get convicted at a .08 who just smelled of alcohol but did fine on other tests. Some people might do poor on test regardless of whether or not they've been drinking but fail a test and bee right at the .08 on the machine and get convicted even though they weren't drunk. Also don't forget you can get pulled with a light out so not everyone with a BAC was driving poorly.

How about you just try this one time, wait till about 10 or 11 tonight or whenever you will be going to bed and raise one knee, absolutely no swaying, hands straight down beside your hips, and count slowly 1 one thousand all the way up to 30 one thousand. If you can do it, then try to imagine doing that with a cop right in front of you and blue lights flashing in your eyes.

If the machine is off by just 6 percent it can mean the difference between someone getting a conviction and someone not and I'll explain that below.

If the machine was 6 percent off a .08 could be a .074 or a .086, depending on which way it was off. The Intox EC/IR II is designed to stop the test if the dry gas sample value is off more than 5 percent. That doesn't mean that the machine isn't out of calibration however.

If a person had a .079 that would be truncated to a .07. If a person blue a .074 and the machine was 5 percent off it would register a .079 but would be truncated like I said to .07. Nobody having a true value of less than .075 gets a .08 on their certificate this way. However, if someone has a true value of .074 and the machine is 6 percent off the machine could read as a .080 and a .080 cannot be truncated down to a .07. That is why the machine can't be off more than 5 percent, because someone not at the legal limit would be charged with DUI. Any case where the BAC is right at the .08 or if you are trying to get an elevated charge reduced and it's right at the level for that I would try to fight it.

I've wrote more about that in a book and also a way to determine if the machine was accurate at the time of testing by knowing some values from the machine at the time of testing. You can take a look at http://breath-test-facts.********
Posted by cwrightva (1 comment )
Reply Link Flag
 

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