Sobering case of CMI breathalyzers
p2pnet news view | Products:- Intoxilyzer 5000EN.
Does that look a little like Intoxilyzer Sodden to you?
Anyhow, a breathalyzer used in Minnesota runs on a pair of Z80 processors and uses 50,000 lines of assembly code, says Nate Anderson in Ars Technica.
But after reports of odd or ‘jumpy’ readings, lawyers have been saying they want to be able to check the code out and, “Pima County Superior Court last week ruled on a motion brought by 20 DUI defendants, giving them access to Intoxilyzer 8000 source code,” says the story, continuing:
“The accuracy of that code base is now under nationwide scrutiny as defense attorneys around the country now frequently claim that the source code must be made available to them during DUI cases. Numerous courts have agreed, but vendor CMI of Owensboro, Kentucky, puts up Herculean resistance to every such request, leading to hundreds of cases being tossed by the courts.
Even worse, “with confidence in the devices plummeting, the state says that it may need to ‘replace its entire fleet of breath testing instruments’ and retrain every officer who uses them.”
‘Fleet’ of breath testing instruments? 
Third-degree DUI and the 5000EN
“For more than 25 years, the Intoxilyzer® line of infrared spectrometry breath alcohol testers has evolved into the STANDARD for accuracy, reliability and courtroom evidence,” promises the company.
But, “When Dale Lee Underdahl was arrested on February 18, 2006, on suspicion of drunk driving, he submitted to a breath test” conducted with another Intoxilyzer, this time the 5000EN, says ZDNet News, going on:
“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.”
In a published decision issued involving the 5000EN, “the Minnesota Court of Appeals ruled that a Dakota County District Court judge committed an abuse of discretion by granting two criminal defendants’ motions for production of the code,” said the Minnesota Lawyer in May.
“The court determined that a defendant must demonstrate that an examination of the Intoxilyzer 5000EN’s software would show defects in its operation or at least would be necessary to determine whether defects exist. In the consolidated cases before it, State v. Underdahl and State v. Brunner, the court found that the defendants had not made such a showing and thus failed to show how the code relates to their guilt or innocence.”
Writ of prohibition
Back to the 8000, ZDNet states »»»
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.”
Meanwhile, Minnesota believed the issues were addressed when CMI, “agreed to a state contract and submitted a half-page confidentiality agreement for its materials,”says Ars Technica, continuing:
“But when it came to source code, CMI said the agreement wasn’t good enough and instead produced ‘ten pages of single-spaced text’ so draconian that most district court judges in the state have refused to allow its use.
“One defendant in the state did get access to the code after signing the document, but CMI then billed him $1,600 to produce it. The state calls this arbitrary and unreasonable, pointing out that slapping the code on a CD-ROM should be little expense or inconvenience. (It appears CMI actually printed and bound the source code before turning it over).”
Hopefully, adds Anderson, “everyone involved sobers up soon.”
Ars Technica – Source code requests force breathalyzer maker to sober up, September 15, 2008
ZDNet News – Defendant wins breathalyzer source code, August 9, 2008
Minnesota Lawyer – Prosecutors win another round in source code battle, May 3, 2008
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September 16th, 2008 at 2:53 pm
“The court determined that a defendant must demonstrate that an examination of the Intoxilyzer 5000EN’s software would show defects in its operation or at least would be necessary to determine whether defects exist. In the consolidated cases before it, State v. Underdahl and State v. Brunner, the court found that the defendants had not made such a showing and thus failed to show how the code relates to their guilt or innocence.”
This court is populated by morons. The burden to demonstrate guilt is on the accusing party.
the accused is not require to demonstrate his/her innocence, overwise people can be condammned only on suspition.
Hellooooo!
Justice work by the consensus only of all citizen. Without this consensus the justice is powerless. Credibility is important to maintain this consensus.
Justice with no creibility = No Justice. And no Justice=No Peace.
It is time to dismiss some of these judges too lazy to read the constitution in order to protect our society and our country.
September 16th, 2008 at 6:49 pm
I am sure there is a very good reason that CMI doesn’t want to show it’s source code. Since their reputation is on the line in this, anything that shows negatively will without doubt reflect in continuing business with the states across the nation. Not only that but if it is showed to be faulty, then all past cases could be ruled invalid where convictions have been made where this instrument was used as the evidence.
It is likely there is such a problem in the code or CMI would not be refusing to release the source code, even at the astronomical fine of $10,000 a day that Florida court has already initiated against them for the refusal to turn over the source code.
Finally the state contact so states that they have no claim on the copyright in relation with the state. “all right, title, and interest in all copyrightable material” that CMI creates as part of the contract “will be the property of the state.” They gave up any copyright claims with the sales of the units to this state. They signed over those rights as a term of sales.
No one can prove there is a problem unless such source code can be examined. As such, no one can prove they are innocent if the equipment is at fault. Sounds to me like there is a lot of vested interests colluding to prevent discovery, despite the contract saying that CMI has no claim on copyright through agreement as a sales term. This is a catch 22 that can not be solved by demonstrating how without being able to see the source code. Seems to me that they are more interested in protecting their jobs as lawyers and judges as well as the state’s legal reputation than getting down to the truth of the matter.
Looks to me like it would be time at this point to seek other makers of breath analyzers to fulfill the states need for this task.
September 16th, 2008 at 6:50 pm
The only reason not produce the code is if the company has something to hide. It’s not like there’s a risk of hackers finding a way to remotely access such devices.
September 17th, 2008 at 12:29 am
(I have no benefit whatsoever for posting the following link, other than informing other people)
http://www.duiblog.com/
The writer at DUI Blog has been going on about this for a few months now, along with other parts of the DUI and MADD problems he sees in the judicial system. So, Jon, you keep trying to protest against the draconian IP laws. He’ll write about the draconian drug laws. Overall injustice in both systems.