Is breathalyzer source code fair game?


Kentucky-based CMI has come under fire on more than one occasion for not turning over the source code used in the breathalyzers that it sells to various law enforcement agencies, citing trade secrets as the reason for keeping the code under wraps. Well that hasn’t sat too well with people who have been pulled over and cited with DUIs, as some of them have claimed that the machines aren’t registering blood alcohol levels accurately.

Just this week, 100 cases were thrown out of a Bradenton, Florida court after defense attorneys demanded to have the source code for CMI’s Intoxilyzer 5000 examined by breathalyzer experts. Kentucky-based CMI refused to turn over the code and software used with its machines, despite threats of more than $2 million in fines.

Bradenton Judge Doug Henderson eventually ruled that “the refusal was a violation of due process,” saying that “The defendant’s right to a fair trial outweighed the manufacturer’s claim of a trade secret.” As such, breathalyzer evidence for the pending cases was deemed inadmissible – and some of those cases had dragged on for over three years.

A similar case involving CMI happened in Minnesota not too long ago when a defendant asked to see the source code for the same model of breathalyzer mentioned above. The Minnesota Supreme Court found that “under the contract between the state and CMI, the state owned the source code for the Intoxilyzer 5000EN.”

So is all this source code hoopla just a stalling tactic or are these legitimate claims?

“What’s frightening is that the 5000EN is apparently based on the ancient Z-80 processor, which powered the Radio Shack TRS-80 desktop computer … which went on sale in 1977. CMI has also been accused of making uncertified changes to the machines, and had to issue a recall due to faulty software.”

That, according to an article on about the Minnesota case back in 2007. Also, please reference the above image for a look at the actual machine.

The bigger issue here, however, isn’t about faulty software, hardware, or source code, it’s that a publicly-funded entity like your local police department buys technology from the private sector and then has no access to information about how the technology works. When that technology is used as evidence in a trial, should it be open to scrutiny by the defense? Your thoughts?

[via Slashdot]