Saturday, May 16, 2009

Source Code Software of Breathalyzer Machines Being Questioned

A case in New Jersey is revealing problems with the software used in certain breathalyzer machines. A review by professional computer programmers has revealed that the base software falls far below accepted standards and contains programming errors that could return false readings. There's been several cases in which defendants have tried to obtain the computer code used by manufacturers of breathalyzer machines. In cases in which manufacturers have refused to turn over this information, courts have been forced to throw out DUI cases. Such requests have been made in Florida and Minnesota. But an ongoing case in New Jersey has revealed flaws in the software. This issue made it all the way up to the state's Supreme Court. The breathalyzer company, Draeger, was forced to turn over it's source code for independent review. Two reviews of the source code were performed. One review was performed by a company called SysTest. This test was commissioned by Draeger. The second test was performed by Base One. This second test was commissioned by the defendant in the case. The results require a technical understanding of computer programming. The test performed by SysTest, which was the company hired by the Breathalyzer company, Draeger. SysTest concluded that in spite of the obvious flaws in the software, when the tests is performed correctly, the results are sufficiently reliable to return consistent test results. However, the tests performed by Base One is much less optimistic. Base One states that using the software poses too great a risk to the public. They suggest that the software should not be used until it is recoded to acceptable standards. Base One suggests that not only could a person wrongly be accused of a DUI, but a person who should be accused of a DUI could be allowed to walk because of the faulty software in these breathalyzer machines.

We are going to be keeping an eye on this case and see if there's any far reaching implications. It should be noted that the implications could be drastic for Draeger. There's reports that the agreement between Draeger and the State of New Jersey provides that if the breathalyzer machines are ever found to be defective, Draeger will be required to refund $7 million to the State of New Jersey.

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1 comment:

Mass. RMV Lawyer said...

Contrary to popular belief, a breathalyzer does not directly measure blood alcohol. Instead, it reads the alcohol in the person’s breath and uses a computer program to extrapolate the breath alcohol reading into a blood alcohol reading. Consequently, it seems to me that this computer program (the “source code”) should be made available to DUI defense lawyers.

It is axiomatic that discovery rules require the disclosure or relevant evidence or that which would lead to such evidence. Here, there can be little dispute that the programming of the breathalyzer is discoverable. This information should be produced, perhaps subject to a protective order, to allow defense experts to determine whether the breathalyzer accurately measures blood alcohol.

It should be of no consequence that a third party possesses the source code. The breathalyzer is being used by trhe state in DUI prosecutions. The state, therefore, should be required to obtain the source code as part of its contract with Draeger, the manufacturer of the Intoxalyzer.

Incidentally, I have spoke with Draeger employees regarding this issue and they have taken a "sour grapes" approach. They claim that experts will not be able to properly decipher the program.

Attorney Brian E. Simoneau
Mass. DUI Lawyer

The Legal Defenders, PC

70 West Madison, Ste 1400 * Chicago * IL 60602 * Phone: (800) 228-7295 * Fax: (800) 604-0507