Surprise court ruling threatens to nullify results of DUI tests
By PAUL QUINLAN

paul.quinlan@heraldtribune.com
VENICE -- In a decision that could throw out the use of alcohol-breath
test results in Sarasota County drunken-driving cases, a panel of judges
ruled that defendants are entitled to inspect the source code of the
breath-testing machine's software, though the manufacturer has refused
to divulge it.

Three Sarasota County judges surprised prosecutors Wednesday when they
sided with Venice defense attorney Robert Harrison by giving the state
15 days to produce the machine's source code for the defense.

The catch: the Kentucky-based manufacturer, CMI Inc., has refused to
turn over the code -- the electronic instructions that drive the machine
-- calling it a trade secret.

Prosecutors, who are considering an appeal, say the company's refusal
leaves their hands tied in the 157 DUI cases for which the order now
applies and whose attorneys received copies of the Wednesday motion.

The order, prosecutors say, threatens to nullify breath test results
from the Intoxilyzer 5000, which police statewide use to measure whether
a driver's blood-alcohol content exceeds the .08 legal limit. Those
results can often be one of the most damning pieces of evidence
introduced in a DUI case.

"We're disappointed with the result. It seems to be an effective
suppression of all the breath tests," said assistant state attorney
Jason Miller, who fought the motion. "We don't have the information that
the court has ordered us to get. We can't get the information that the
court has ordered us to get. If we did, we would comply with the judge
immediately."

Attorneys close to the case expect the state's attorney to appeal. In
the meantime, police will continue to the use the test despite the
deadlock over source code.

The decision also reverberated across the Internet on forums and techie
Web sites, whose users hailed it as an important step forward in the
legal crusade to open up the inner workings of other government
computers, such as voting machines. By 8 a.m. Thursday, 12 hours after
posting a link to the court order, a local blog, veniceflorida.com,
logged a record 13,000 hits.

The ruling isn't the first of its kind in Florida. Last November, judges
in Seminole and Orange counties decided to exclude Intoxilyzer 5000
breath-test results from hundreds of cases. But judges in two other
Florida counties have ruled otherwise, upholding prosecutors' arguments
that they can't turn over something they do not possess and that the
code itself is immaterial to the DUI cases.

CMI, the manufacturer, has "been consistent in defense of their trade
secret," said assistant state attorney Miller. "We're really unable to
provide a secret of theirs."

The order would allow the company to turn over the machine's source code
under a protective order that would keep the information from the public
record.

CMI refused to comment Thursday.

In the court's 11-page order, the judges cite a Florida law that
requires that someone who is tested by a machine be granted "full
information" about the test upon request. The ruling represented a
broader interpretation of a phrase that has, in the past, applied
primarily to manuals and electronic schematics.

"Full information should include the software that runs the instrument,"
reads the order, signed by county judges David Denkin, Kimberly Bonner
and Judy Goldman. "Unless the defense can see how the breathalyzer works
and verify it is an approved machine, it remains .... nothing more than
a 'mystical machine' used to establish an accused's guilt."

The judges ruled that a look at the source code was material to the
case, based on photographic evidence that showed visible differences in
the arrangement and number of erasable and programmable memory chips
inside Intoxylizers now in use throughout Sarasota County.

An expert witness testified that without the source code, he would be
unable to determine whether any changes or modifications had occurred.

"It may be something innocuous," Harrison said. "It may be something
nefarious."

Other nuances within the code, such as how and when the machine rounds
numbers, could provide fodder for the defense of accused drunken drivers
who test on or near the legal limit.

"When you do a case-by-case analysis, there will be certain cases where
the loss of a breath test isn't a big deal," Harrison said. "There's
other cases, where, if you take out the breath test, they've got
nothing."

Prosecutors have 15 days to appeal the ruling or produce the machine's
source code. Attorneys close to the case expect an appeal, which could
go before 12th District Circuit Judges within the county or to the
state's 2nd District Court of Appeal in Lakeland. It would have little
direct effect on cases outside of Sarasota County, though a Manatee
County judge joined the three Sarasota judges in hearing the arguments.


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