Drunk driving legalized-by-proxy in Florida

  • Thread starter hitssquad
  • Start date
In summary: It was a hassle he could have avoided but he didn't trust the breathalizer.In summary, the use of breath-alcohol tests in Seminole County, Florida has been called into question due to the manufacturer's refusal to disclose how the machines work. As a result, hundreds of cases have been thrown out in the past five months. While some judges believe that defendants are entitled to this information, others argue that the state cannot disclose something it does not possess and that the manufacturer should not have to reveal trade secrets. This raises concerns about the accuracy and reliability of the tests, as well as the rights of defendants to question the means by which they have
  • #1
hitssquad
927
0
http://www.timebomb2000.com/vb/showthread.php?t=154033


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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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  • #2
hitssquad said:
"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.
--

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?
 
  • #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 different 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.
 
  • #4
Establishing accuracy and reliability of scientific instruments

Moonbear said:
if nobody can explain how the machine works or share the source code, then how do you really know it is accurate
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.
 
  • #5
hitssquad said:
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.


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.
 
  • #6
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.
 
  • #7
franznietzsche said:
hitssquad said:
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.
If there were a fundamental flaw in the source code [...] then all results would be incorrect.
That seems to be essentially what I said.
 
  • #8
Evo said:
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.
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.
 
  • #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.
 
  • #10
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).

http://www.kscourts.org/kscases/ctapp/1998/19980529/77311.htm [Broken]
 
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  • #11
Proof beyond reasonable doubt vs. proof leaving zero doubt

TheStatutoryApe said:
Legally anyone should have the ability to question the means by which they have been determined to have commited a crime.
That would leave zero doubt about criminal culpability, whereas the test in use in the United States for criminal cases is reasonable doubt.
lectlaw.com/def2/q016.htm
 
  • #12
Evo said:
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."
"Or other bodily substance"? Sound mighty suspicious to me...
 
  • #13
The heroin-test-poppy-seed flaw - it was detected

BicycleTree said:
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 [...] modification would be undetectable in statistical tests
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.
 
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  • #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?
 
  • #15
The mission of the criminal justice system

BicycleTree said:
If you deliberately designed the device to target a specific group [...] 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
  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.
http://www.nizkor.org/features/fallacies/red-herring.html
 
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  • #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.
 
  • #17
BicycleTree said:
But I also believe
Your personal beliefs were not called into question and are off-topic in this thread.
 
  • #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?
 
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  • #19
hitssquad said:
That would leave zero doubt about criminal culpability, whereas the test in use in the United States for criminal cases is reasonable doubt.
lectlaw.com/def2/q016.htm
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.
 
  • #20
TheStatutoryApe said:
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.
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.
 
  • #21
Moonbear said:
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.
Exactly. But it is up to the judge to determine whether or not what hasn't been disclosed may alter the outcome. Even then the defendant could feasibly fight the verdict on the grounds that the specs of the machine had not been made available. The judge could even render his verdict guilty without regard for the breathalizer evidence if he really wanted to.

In any event I think when you produce a product that is used by the government, or any agency of it, in this fashion it should be the right of the citizenry to know how it works. I some how doubt that releasing the information is going to hurt their business.
 
  • #22
hey that's my county! ill have to do a little experimenting and post back here :P

lol j/k. man florida is crazy
 
  • #23
If a person can offer no other defense for a charge of DUI than, the possible miscalibration or possible mistake in programming of the testing machine, that person probably is guilty and has not raised the possiblity in my mind of reasonable doubt of their guilt.

If that same person says under oath that they were not drinking, but had a Steak diner with fruit for desert (which can, I am told, produce an alcohol effect) then sure call the test into question.

Or if they say they only had one beer and can produce witnesses to that effect. Sure call the test into question.

On a related note, I have had three cars wrecked by drunk drivers within eight months in two separate accidents. Both times my cars were parked in my driveway and the drunks crashed into them. And frankly, I don't want to hear any crap about a miscalibrated breath test. Let the cops get the idiot drunks off the road.
 
  • #24
Artman said:
If a person can offer no other defense for a charge of DUI than, the possible miscalibration or possible mistake in programming of the testing machine, that person probably is guilty and has not raised the possiblity in my mind of reasonable doubt of their guilt.
I guess the issue comes down to what other evidence is there. The arresting officer(s) should be able to provide testimony regarding the person's behavior and speech patterns, ability to pass a field sobriety test, any noticeable odor of alcohol, any open containers in the vehicle, and the erratic driving that got them pulled over in the first place. If the only evidence against that driver is the breathalyzer, then that does make you wonder about the validity of the machine, along with what probable cause there was to require the breathalyzer test. If the breathalyzer was just one among several indicators of the defendant's lack of sobriety, throwing out the breathalyzer evidence should still leave a sufficient preponderance of evidence that this person's driving was indeed impaired due to the influence of alcohol.

Of course, when we have laws that set arbitrary legal limits for BAC, that's where the technicalities probably become an issue. If someone gets to walk when they have a BAC of 0.099999999 and is convicted at 0.1, regardless if they were clearly impaired in their ability to drive, then how the machine handles rounding becomes an issue. This should only be relevant, though, in those cases when someone is truly on the borderline where rounding error could make the difference between conviction or not. I would expect this is a minority of cases though.
 
  • #25
Artman said:
On a related note, I have had three cars wrecked by drunk drivers within eight months in two separate accidents. Both times my cars were parked in my driveway and the drunks crashed into them. And frankly, I don't want to hear any crap about a miscalibrated breath test. Let the cops get the idiot drunks off the road.


Its irrelevant what the actual crime was. If the methods of gathering evidence are potentially faulty(and there is always a possiblity, however minute), a defendant has the right to all information regarding those methods to prepare the best defense. If that cannot be provided, the evidence should not be used. I don't like drunk drivers getting away either. I think punishments for it are woefully insufficient. Permanent revokal of driver's license for repeat offenders, plus mandatory jailtime should be the minimum in my opinion. BUT, that doesn't mean they don't still have the same rights as regards to what information is available in making their defense.
 
  • #26
You are both missing the point. If incorrect breathalyzer tests cause only a single case to result in a false guilty verdict, this risk does not warrant the somewhat costly process of reverse engineering of the breathalyzer. Therefore, the issue in question is not the rights of the defendant in any single DUI case, but the rights of all DUI defendants as a group.


Any potential source of very major legal error should be eliminated if there is a method that could be used to eliminate them that is at all practical. Serious but statistically almost undetectable breathalyzer flaws (such as the possible Portuguese food deliberate bias) would be a source of legal error for very many cases and potentially could happen. Given that these types of breathalyzer flaws would be a source of legal error for very many cases, they are a source of very major legal error. So serious but statistically almost undetectable breathalyzer flaws should be eliminated if there is a method used to eliminate them that is at all practical.

Reverse engineering is a method that is at all practical to eliminate serious but statistically almost undetectable breathalyzer flaws. So serious but statistically almost undetectable breathalyzer flaws should be eliminated.

The method of statistical tests is not at all practical to eliminate serious but statistically almost undetectable breathalyzer flaws. And either statistical tests are at all practical for this purpose, or reverse engineering is at all practical for this purpose, (or both), but no other methods are at all practical for this purpose. And given that serious but statistically almost undetectable breathalyzer flaws should be eliminated, a method should be used to eliminate them that is at all practical. Therefore, reverse engineering should be used to eliminate serious but statistically almost undetectable breathalyzer flaws.
 
  • #27
BicycleTree said:
You are both missing the point. If incorrect breathalyzer tests cause only a single case to result in a false guilty verdict, this risk does not warrant the somewhat costly process of reverse engineering of the breathalyzer. Therefore, the issue in question is not the rights of the defendant in any single DUI case, but the rights of all DUI defendants as a group.

How is that not what I said? I said all defendants, of any crime, have a right to any and all information about how the evidence against them was gathered and analyzed. Period.


The method of statistical tests is not at all practical to eliminate serious but statistically almost undetectable breathalyzer flaws. And either statistical tests are at all practical for this purpose, or reverse engineering is at all practical for this purpose, (or both), but no other methods are at all practical for this purpose. And given that serious but statistically almost undetectable breathalyzer flaws should be eliminated, a method should be used to eliminate them that is at all practical. Therefore, reverse engineering should be used to eliminate serious but statistically almost undetectable breathalyzer flaws.

Why reverse engineer? The company should simply provide the information. If they refuse to, then the government should not be buying from them. PLain and simple.
 
  • #28
franznietzsche said:
How is that not what I said? I said all defendants, of any crime, have a right to any and all information about how the evidence against them was gathered and analyzed. Period.

Why reverse engineer? The company should simply provide the information. If they refuse to, then the government should not be buying from them. PLain and simple.
They do not want to submit to reverse engineering by Joe Blows Attorney's "expert." The court should appoint a third party to validate the machine and sign a nondisclosure agreement with the company that owns the equipment rights. This would only have to be done periodically.
 
  • #29
And, as usual, no one read my post showing that some states do not allow questioning of how the device is made as long as other qualifications are met. Pretty much what Artman just said, but in more detail.

See my post #10.
 
  • #30
Evo said:
And, as usual, no one read my post...
I read all of the posts before mine. I thought they approached it the way I thought it should be done. They were a little unfair about the rules concerning submitting to the test, but I can understand that. A lot of times, a drunk driver will flee the scene or refuse to submit to the test until they believe the effects have worn off enough for them to pass. Then they will turn themselves in or take the test.
 
  • #31
franznietzsche said:
How is that not what I said? I said all defendants, of any crime, have a right to any and all information about how the evidence against them was gathered and analyzed. Period.
Actually, I was referring to Moonbear and StatutoryApe, who were focusing on the rights of a single defendant and circumstances that might make a single defendant's trial more or less fair. The focus of your post did not appear to be so narrow.

To expand on that, it's not reasonable for a defendant to spend $10,000 in research to avoid a $500 fine or a couple days in jail (or whatever the penalty is). Something like that is only reasonable if the interests of many defendants are at stake. As hitssquad pointed out, some reasonable doubt is permissible in an isolated case for a DUI charge.

Why reverse engineer? The company should simply provide the information. If they refuse to, then the government should not be buying from them. PLain and simple.
Yes--it should. But reverse engineering is always going to be the integral part of it, because if you can't trust the company's product then you can't trust the company's plans.
 
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  • #32
BicycleTree said:
Yes--it should. But reverse engineering is always going to be the integral part of it, because if you can't trust the company's product then you can't trust the company's plans.


I wasn't claiming that they intentionally would make the product inaccurate, and then cover it up--that's a different manner entirely. Assuming that any flaws would be unintentional, them divulging their own specifications to which they built the product should be sufficient, assuming these are sufficiently detailed.
 
  • #33
Why would you assume that a scenario similar to the one I proposed in post #9 of this thread will never happen?


Also, if the device may be incompetently designed, it may be incompetently manufactured even from correct designs.
 
  • #34
BicycleTree said:
Actually, I was referring to Moonbear and StatutoryApe, who were focusing on the rights of a single defendant and circumstances that might make a single defendant's trial more or less fair. The focus of your post did not appear to be so narrow.

How was my post only applying to a single defendant? I gave an example of how an inaccurate machine might affect a certain defendant, but that was simply an example to illustrate why it is important to know how the machine works if it is going to be used to provide legal evidence. I don't think we're in disagreement on this issue, I just tried to give an example that doesn't appear quite as far-fetched as your example. Rounding errors would be far more likely than something that would detect different BAC in a breath test of people from different countries, but I realize you're just giving an exaggerated example for illustration there.

You would also need to show that any individual machine is accurate at the time it is used, not just that the design had been tested prior to production or that the specific machine was tested prior to shipment, but that it is regularly calibrated accurately and does not have an inherent bias in the programming that might not be detected by testing with a set of standards. Here's another example: gas pumps can be set to cheat the customer. For a long time, when whatever regulatory agency came around to check the calibration of the machine, they always measured fixed amounts of gas, like 5, 10 and 15 gallons to check that what was pumped is what the pump read and charged for. So what the unscrupulous did was set the pumps so they would "catch up" at 5, 10 and 15 gallons, and meet certification requirements. Now, a customer pulls up and pumps 7.5 gallons, and only gets 7 gallons, and that was not detected by the calibration/standardization method.

So, the machine might test accurately against a set of standards, but there may be inaccuracies outside of that range that could be determined if one examined the inner workings, or there could be a manufacturing problem in whatever the standards are that are used to calibrate the machine.
 
  • #35
All right--perhaps you did intend your comments to have broader scope than the rights of individuals in individual cases, and just didn't make that clear.


No, my example was not particularly exaggerated. Is there some technical reason why a racist couldn't design a breathalyzer that counts ethnic foods as inebriation?

But your example:
Moonbear said:
If someone gets to walk when they have a BAC of 0.099999999 and is convicted at 0.1, regardless if they were clearly impaired in their ability to drive, then how the machine handles rounding becomes an issue.
.1 - 0.099999999 = 0.000000001. So this is only an issue if the precision of the breathalyzer is on the order of 0.000000001. Given the information here: http://www2.potsdam.edu/hansondj/DrivingIssues/1093825780.html final rounding is definitely not an issue.
that site said:
Research indicates that breath tests vary at least 15% from actual blood alcohol concentration
 

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