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Drunk driving legalized-by-proxy in Florida

  1. Jun 7, 2005 #1

    DUI Defendants Skip Charge By Asking How Test Works

    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.
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  3. Jun 7, 2005 #2


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    Those really aren't opposite statements, are they? The manufacturer doesn't need to turn over trade secrets, but then that also would mean the government either shouldn't contract with them if the testing method is going to invalidate the results as court admissable evidence, or the government needs to accept that they can't rely on that evidence.

    While it bothers me that drunk drivers are getting off the hook on a technicality, if nobody can explain how the machine works or share the source code, then how do you really know it is accurate and doesn't have a bug in the code that once in a while gives a false reading?
  4. Jun 7, 2005 #3
    If a police officer were to take someone in for drunk driving without utilizing a breathalizer they would surely be asked to describe by what means and expertise they decided this. I don't see why it should be any differant in the case of a device. It ought to be established by what means this device has determined the subject was intoxicated and that it is a reliable means of making this determination.
  5. Jun 7, 2005 #4
    Establishing accuracy and reliability of scientific instruments

    Scientific investigation combined with statistical analysis. This the same way that the accuracy and reliability of psychological instruments — and that of all other scientific instruments — is established. In none of those cases are the mechanics of a given instrument in question perfectly and thoroughly known.
  6. Jun 7, 2005 #5

    Apples and oranges to say the least.

    If there were a fundamental flaw in the source code (say they didn't compensate for floating point rounding error) then all results would be incorrect.

    While I don't like drunk drivers getting off either for any reason, as a general principle a person can only defend themselves properly in a court of law if they have access to ALL relevant information.
  7. Jun 7, 2005 #6


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    If the instrument is proven to be reliable and accurate, how it is made is irrelevant. These devices have been tested for accuracy against blood & urine samples. I don't think their accuracy is in question.

    I thought that in most states refusal to do a breathalizer was virtually the same as confessing to be drunk. I'm going into a meeting, so don't have time to look up the specifics, maybe someone has more info on that.
  8. Jun 7, 2005 #7
    That seems to be essentially what I said.
  9. Jun 7, 2005 #8
    Legally anyone should have the ability to question the means by which they have been determined to have commited a crime. How effective the breathalizer is should be part of that and how it works would determine part of that. Also using the breathalizer under lab conditions I'm sure is different than using one in the field.

    I'm not sure about elsewhere but here it does not mean you are confessing to be drunk. Here you legally have the right to request a different method be used. At the same time the police will be upset and suspicious as well as the judge seeing your case. A friend of mine refused to do a breathalizer once because although he had stopped drinking several hours prior he had taken a drink of beer to wet his whistle before leaving the bar. He told them he wanted to be tested by other means so they took him in and administered a different test. Even though he was under the legal limit they stilled popped him for it because technically they can if they feel that he personally was not safe to drive even at that level. The reason they did so ofcourse was because he had pissed them off by refusing the breathalizer.
  10. Jun 7, 2005 #9
    I think that the defendants should know the workings of the test. Otherwise, take this extreme example: the designers of the breathalyzer give it a built-in feature to detect molecules from certain kinds of Portuguese ethnic foods and count them as high alcohol readings. Probably this racist modification would be undetectable in statistical tests, and it could result in many unfair convictions if no one but the manufacturer knew how the breathalyzer worked.
  11. Jun 7, 2005 #10


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    Here is the law in Kansas. If you refuse to take a breath test, your license will be revoked for one year and can be confiscated on the spot by the officer.

    Further Kansas law on refusing breathalyzer tests.

    "Kansas law states that "[a]ny person who operates or attempts to operate a vehicle within this state is deemed to have given consent . . . to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs." K.S.A. 1997 Supp. 8-1001(a). The legislature gave the law enforcement officer the right to select which type of test is used, but requires the officer to advise the licensee of his or her right to refuse the test and the consequences which may arise if the test is not taken or refused. K.S.A. 1997 Supp. 8-1001(f)(1)."

    After a licensee fails an alcohol breath test (scoring an alcohol concentration of .08 or more) and the KDR is so advised, KDR serves a notice of suspension on the licensee. K.S.A. 1997 Supp. 8-1002(a)(2) and (c). If a timely request for a hearing is received from the licensee, a hearing is scheduled before KDR. The scope of the administrative hearing is set forth in K.S.A. 1997 Supp. 8-1002(h)(2). This statute limits the issues that can be raised in such a hearing. Those issues can include whether "(D) the testing equipment used was reliable; (E) the person who operated the testing equipment was qualified; (F) the testing procedures used were reliable; (G) the test result determined that the person had an alcohol concentration of .08 or greater in such person's blood or breath." K.S.A. 1997 Supp. 8-1002(h)(2).

    In such hearings, or in de novo hearings before the district court, an affidavit from KDHE stating the equipment and officer were certified on the date the licensee was tested is admissible and "shall be admitted to prove such reliability without further foundation requirement." K.S.A. 1997 Supp. 8-1002(i). Moreover, a "certified operator of a breath testing device shall be competent to testify regarding the proper procedures to be used in conducting the test." K.S.A. 1997 Supp. 8-1002(i).

    In interpreting these provisions, the Kansas appellate courts have repeatedly held that the legislature has expressly found that results from breath tests are sufficiently reliable to be admitted into evidence if the foundation establishes that the testing machine was operated according to the manufacturer's operational manual and any regulations set forth by KDHE and if the equipment and operator are certified. See State v. Bishop, 264 Kan. 717, 957 P.2d 369 (1998); State v. Rohr, 19 Kan. App. 2d 869, 870, 878 P.2d 221 (1994); State v. Lieurance, 14 Kan. App. 2d 87, 91, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990).

  12. Jun 7, 2005 #11
    Proof beyond reasonable doubt vs. proof leaving zero doubt

    That would leave zero doubt about criminal culpability, whereas the test in use in the United States for criminal cases is reasonable doubt.
  13. Jun 7, 2005 #12
    "Or other bodily substance"? Sound mighty suspicious to me...
  14. Jun 7, 2005 #13
    The heroin-test-poppy-seed flaw - it was detected

    A similar situation has already come to pass. The blood test(s) used in America to detect heroin use also test positive for poppy-seed consumption. This fact has not been left undetected by the investigations and statistical analyses of the tests. Your particular supposition of outcome has therefore been proved at least to obtain in not all such cases.
    Last edited: Jun 7, 2005
  15. Jun 7, 2005 #14
    Well, I presume that the poppy-seed-heroin flaw was unintentional (not deliberately constructed to be hard to detect by statistical methods). Also, many more people eat poppy seeds than Portuguese food, making the flaw still easier to detect statistically.

    If you deliberately designed the device to target a specific group (e.g. Portuguese Americans) you could be more subtle about it, giving only a somewhat increased reading which would be sufficiently low as to be hidden as chance variation in medium-size statistical tests, where you would presumably have only a fairly small (statistically not significant) population of people who had eaten Portuguese food. Only large statistical tests and sophisticated and broad-scope data mining could uncover it, and who would ever think that such would be necessary?
  16. Jun 7, 2005 #15
    The mission of the criminal justice system

    1. Also, your code could be written subtley or confusingly such that examination of the code would not detect the deliberate bias. The particular issue at stake in this thread is that of whether or not the code, or mechanics, need to be examinable in order to have a fair criminal trial.

    2. Criminal court cases already are bombarded with subtle biased influences. We assume that these are there and that it makes the most sense to allow a few innocent persons to be punished in order to allow the justice system to function at all. Hence, we test for proof beyond reasonable doubt rather than proof beyond all doubt.
    In other words, otherwise-contraband biased influences in the criminal justice system are allowed and accepted as long as they remain undetectable. To suggest that the justice system has a mission to weed out all sources of bias is a false assumption and, in this thread, a Red Herring.
    Last edited: Jun 7, 2005
  17. Jun 7, 2005 #16
    At least obfuscated code is difficult to write, and if the skilled examiner of the code can't figure it out at first, he might guess something fishy is going on and therefore look into it further. Whereas statistical tests could miss the modification without any indication that anything was out of order.

    I believe that the justice system has a duty to weed out as many sources of bias as are reasonable and feasible to weed out, but not necessarily all of them. But I also believe that any source of deliberate, malicious bias should not be tolerated. There are mechanisms designed to prevent policemen from introducing fabricated evidence, and likewise there should be mechanisms to prevent engineers from creating devices (in this case breathalyzers) that produce fabricated evidence.
  18. Jun 7, 2005 #17
    Your personal beliefs were not called into question and are off-topic in this thread.
  19. Jun 7, 2005 #18
    I "believe" and also I gave a precedent (existing procedures to prevent police officers from introducing fabricated evidence).

    I construe the topic of this debate to be whether the law that defendants have a right to examine the workings of a device that produces evidence against them is just. The standards for determining justness must include those of moral personal belief. Therefore, some of my moral personal beliefs are on-topic in this thread, assuming my conception of the topic of this thread is correct.

    Given that some engineers would be capable of creating the device in such a way as to introduce deliberate bias which would be undetectable by ordinary statistical tests, and given that direct examination of the engineers' design would be sufficient to determine whether the design introduces deliberate bias, do you believe that preventing these engineers from introducing such bias on a statewide scale merits direct examination of the engineers' design?
    Last edited: Jun 7, 2005
  20. Jun 8, 2005 #19
    I don't see how a distinction between zero doubt and reasonable doubt has much to do with this. Any person accused of a crime has the right to know by what means they have been found guilty of commiting one and how reliable it is. This means there must be full disclosure of what evidence was gathered and how it was gathered, that later bit being just as important as the former. If these things can not be disclosed for any reason then the evidence should inadmissible unless the judge sites special circumstances that will allow it. You are right the prosecution of the case only requires reasonable doubt but if none of the evidence is admissable, for what ever reason, then they have failed to even get beyond reasonable doubt.
  21. Jun 8, 2005 #20


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    And if whatever couldn't be disclosed wouldn't change the outcome, then it's the prosecution's responsibility to argue the admissibility of the evidence. The prosecutor should be ready to explain the calibration of the machine, the quality control testing, etc. If the prosecutor did their job, the judge wouldn't have to guess at technological issues they themselves aren't qualified to determine.
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