Ky. Company which manufactures BA machine faces $2 million in fines for flaunting court orders re: software code

  

  A Kentucky based company, CMI of Owensboro, manufactures the Breathalyzer machine used in Kentucky and other states, is facing more than $2 million in fines because of their refusal to release the source codes as ordered by courts in at least two  states including Minnesota and Florida.  The Kentucky Court of Appeals ordered CMI to turn over the source code in a Kentucky case issued in January of 2008.

The Kentucky Court of Appeals decision (see article below) issued on Jan. 18, 2008 directed that the company provide defense attorneys access to the software source code so that the machine could be tested for accuracy.  CMI has refused to turn over the source code when ordered to do so in other states.

The Kentucky Supreme Court has granted  Discretionary Review by the Commonwealth in the case of Lennie House v. Commonwealth and that appeal is still pending.   In this case the Court of Appeals ruled that CMI the manufacturer of the Intoxilyzer Breathalyzer machine must turn over the machine software source code to the defendant who was charged with DUI after failing a test on one of the machines manufactured by CMI of Owensboro, Kentucky.

 The company has refused court orders in Minnesota and Florida to turn over the source code.  Critics say the BA machine is sometimes inaccurate and can give false positive readings.

 The failure of CMI to turn over the source code as ordered by the courts may result in hundreds of DUI cases being dismissed.

   Kentucky law requires that before a BA test is declared valid several operational tests must be performed, but the Kentucky courts have ignored a statue and a Ky. Administrative Regulation issued by the Justice Cabinet which create a threshold for use of BA tests.  These court rulings have eliminated safeguards that appear to be otherwise required.

 

Experts continue to raise questions about the accuracy of the CMI Breathalyzer machine also known as the Intoxilyzer 5000.

Minnesota:

Faulty Breathalyzer May Void Some Minnesota DUIs

Car Tech  May 26, 2009

Thousands of Minnesota drunk driving convictions may soon be voided, thanks to an obstinate company’s refusal to turn over the (allegedly faulty) source code of its breath-testing device. In light of exposed innacuracies in such devices, a Minnesota court recently issued a ruling allowing defendants in DUI cases to request that the prosecution turn over the source code for the CMI Intoxilyzer 5000, the primary breath-testing device used by Minnesota police. CMI has refused to comply to such requests, stating that the code is a protected trade secret.the second time that the Kentucky-based CMI has refused such a request: The first time was in January of this year, at the request of a Florida judge. Either CMI believes that it can be competitively compromised if the code is turned over (since it already owes millions of dollars in court fines for not doing so), or its code is just faulty. At this point, it’s impossible to know the truth, but given the reports that state the inaccuracy of breathalyzer machines, you can bet that both sides will fight this one to the very end. It’s a very gray battle to be sure. While we’d hate to see drunk drivers go free, we think everyone would agree that a court decision based on potentially false evidence is much worse. [From: ScienceBlogs]

Actually, this is

 FLORIDA:

Manatee judge tosses DUI breath tests

nalund@bradenton.com

 

BRADENTON — The results of breath tests in more than 100 local drunken-driving cases will not be allowed at trial, a judge announced Tuesday.

The validity of those breathalyzer tests has been challenged for more than three years because of the Intoxilyzer 5000, a machine that uses a breath sample to measure a person’s blood-alcohol content.

Manatee County Judge Doug Henderson ruled two years ago that any Intoxilyzer 5000 tests were inadmissible in trial, but prosecutors appealed. On Tuesday, Henderson told lawyers that his ruling had been affirmed by the Second District Court of Appeal and Circuit Court.

Henderson instructed attorneys to draft an order reflecting the court’s decision, and that he planned to sign it, he told the Bradenton Herald.

The announcement could mean long-awaited conclusions to a legal fight that has stalled the cases in Manatee and Sarasota counties. It was unclear late Tuesday whether other appeals were possible.

Prosecutors must now decide whether to take the cases to trial without that evidence or reduce or dismiss the DUI charges.

Defense attorneys have challenged the machines, saying their clients have a right to have DUI defense experts analyze whether the machines function properly.

But Kentucky-based CMI Inc., the company that makes Florida’s breath-test machines, refused to release its source code, or computer software. Both Henderson and Sarasota County Judge David Denkin ordered CMI to divulge the code, but CMI said it is a protected trade secret.

Although Henderson and Denkin agreed, they determined the refusal was a violation of due process. The judges ruled the breath-test evidence should be tossed from trial.

“The defendant’s right to a fair trial outweighed the manufacturer’s claim of a trade secret,” Henderson said Tuesday.

The appeals court ruling could cripple many of the cases.

“We are going to wait until we have reviewed the written order to determine whether we have any appellate fights and what sort of action we should take with the cases,” said Assistant State Attorney Erica Arend, chief of the misdemeanor division in the 12th Judicial Circuit, which consists of Manatee, Sarasota and Desoto counties.

Mark Lipinski, who represents seven defendants challenging the source codes, said the state likely will be forced to reduce charges — or drop the cases entirely.

Prosecutors could still take their cases to trial using other evidence, including field sobriety tests, admissions of guilt and other indicators of impairment.

Some of Lipinski’s clients have been waiting for a conclusion to their case for more than three years.

“My clients didn’t get swift justice, but at least they got justice,” Lipinski said.

“What this really means is that outside corporations cannot sell equipment to the state of Florida and expect to hide the workings of their machine by saying they are trade secret,” he added. “It means the state has to give full disclosure concerning important and critical aspects of the case.”

To date, CMI is facing more than $2 million in fines because of their refusal to release the source codes, Lipinski noted.

“Even in today’s economy, a million here and a million there amounts to real money,” he said.

Breath Analyzer Accuracy

http://www2.potsdam.edu/hansondj/drivingissues/1055505643.html

 by David J. Hanson, Ph.D.

About half of all alcohol-related traffic accident fatalities involve drivers with a Blood Alcohol Concentration (BAC) of about .16 or higher. A significant proportion of such high-BAC drivers are hard core drunk drivers; they repeatedly abuse alcohol and drive while intoxicated. Hard core drunk drivers are a major threat to the safety of themselves and others. Breath analyzers are a major tool in convicting such dangerous offenders.

Breath analyzers (Breathalyzer, Intoxilyzer, Alcosensor, Alcoscan and BAC Datamaster are common brand names) don’t actually test blood alcohol concentration (BAC), which requires the analysis of a blood sample. Instead, they estimate BAC indirectly. Different types of machine use different techniqes and larger machines generally yield better estimates than do hand-held models. Therefore, some states don’t permit data or “readings” from hand-held machines to be presented as evidence in court. South Dakota does not even permit evidence from any type or size breath tester but relies entirely on blood tests to ensure accuracy and protect the innocent.

A major problem with some machines is that they not only identify the ethyl alcohol (or ethanol) found in alcohol beverages, but also other substances similar in molecular structure. Those machines identify any compound containing the methyl group structure. Over one hundred compounds can be found in the human breath at any one time and 70 to 80 percent of them contain methyl group structure and will be incorrectly detected as ethyl alcohol. Important is the fact that the more different ethyl group substances the machine detects, the higher will be the false BAC estimate.

The National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics can have acetone levels hundreds and even thousand of times higher than that in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines.

One investigator has reported that alcohol-free subjects can generate BAC readings of about .05 after eating various types of bread products.

Substances in the environment can also lead to false BAC readings. For example, an alcohol-free subject was asked to apply a pint of contact cement to a piece of plywood and then to apply a gallon of oil-base paint to a wall. The total activity lasted about an hour. Twenty minutes later the subject was tested on an Intoxilyzer, which registered a BAC of .12 percent. This level is 50% higher than a BAC of .08, which constitutes legal intoxication in many states.

Ignition Interlocks

An ignition interlock is a device installed in a vehicle to prevent its use if a driver has been drinking alcohol. It includes a breath testing device into which the driver must blow before starting the engine.

The blood-alcohol concentration (BAC) limit for starting the car is very low, under .025, which is less than 1/3 the legal limit of .08. Therefore drivers are advised by authorities not to eat or smoke before trying to start their vehicles. Otherwise, the device may prevent them from driving.

Repeat DUI offenders to get ignition interlock: blood-alcohol level must be below .025 to start car. TheWGALChannel.com, 10-1-03.

Similarly, a painter with a protective mask spray painted a room for 20 minutes. Although a blood test showed no alcohol, an Intoxilyzer falsely reported his BAC as .075.

Any number of other products found in the environment can cause erroneous BAC results. These include compounds found in lacquers, paint removers, celluloid, gasoline, and cleaning fluids.

Other common things that can cause false BAC levels are alcohol, blood or vomit in the subject’s mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture.

Breath testers can be very sensitive to temperature and will give false reasings if not adjusted or recalibrated to account for ambient or surrounding air temperatures. The temperature of the subject is also very important. Each one degree of body temperature above normal will cause a substantial elevation (about 8%) in apparent BAC.

Many breath testing machines asume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. This variation will lead to false BAC readings.

Physical activity and hyperventilation can lower apparent BAC levels. One study found that the BAC readings of subjects decreased 11 to 14% after running up one flight of stairs and 22-25% after doing so twice. Another study found a 15% decrease in BAC readings after vigorous exercise or hyperventilaion.

Some breath analysis machinnes assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading.

Failure of law enforcement officers to use the devices properly or of administrators to have the machines properly maintained and re-calibrated as required are additional sources of error.

Research indicates that breath tests vary at least 15% from actual blood alcohol concentration. At least 23% (that’s about one out of every four) of all individuals tested will have a BAC reading higher than their actual BAC.

One writer has observed that

Breath testing, as currently used, is a very inaccurate method for measuring BAC. Even if the breath testing instrument is working perfectly, physiological variables prevent early reasonable accuracy….Breath testing for alcohol using a single test instrument, should not be used for scientific, medical or legal purposes where accuracy is important. 1

 LawReader article from Jan.2008

Kentucky:

COURT OF APPEALS RULES THAT BREATHALYZER SOURCE CODE MUST BE PROVIDED TO DEFENDANT

LawReader Senior Editor Stan Billingsley – January 18, 2008
The Court of Appeals issued a decision on Friday Jan. l8,  written by Senior Status Judge Paul Rosenblum which allows a defendant to view the source code of the Intoxilyzer 5000.  The trial judge had suppressed the subpoena seeking the code filed by defense attorneys. 

Claims have persisted for years that there are errors in the code that can cause false positive readings.  It is believed that experts reviewing the closely guarded code may be able to expose the bugs in the computer software that controls the tests produced by the Intoxilyzer 5000, the version of the Breathlyzer used and manufactured in Kentucky.

Judge Dixon joined in the decision with Judge Rosenblum.  Ct. of Appeals Judge Lambert dissented.

The synopsis provided by LawReader.com can be viewed by subscribers. 

 Excerpts from the ruling:

ROSENBLUM, SENIOR JUDGE: Lennie G. House appeals from an Opinion of the Fayette Circuit Court which affirmed the Fayette District Court’s granting of the Commonwealth of Kentucky and CMI, Inc.’s, (CMI) motion to quash a subpoena issued by House to CMI requiring CMI to produce the computer source code of its breathalyzer instrument, the Intoxilyzer 5000. For the reasons stated below, we reverse.

Def. House produced a computer software engineer, Jeremy Riley, who testified that if the source code for the instrument were produced, he could examine the code for any “bugs” or flaws in the code’s logic which may be contained therein, and which as a result may produce an incorrect blood alcohol reading evidence is relevant if it has any tendency to render the existence of any consequential fact more or less probable, however slight that tendency may be.

The request is not unreasonable because its purpose is to challenge the validity of the breath alcohol readings produced by the Intoxilyzer 5000 instrument which is anticipated to be used at trial in support of the Commonwealth’s DUI charge against House.

Because a flaw in the computer source code of the Intoxilyzer 5000 would be consequential to the accuracy of the reading intended to be relied upon by the Commonwealth, such evidence is relevant and admissible.

Accordingly, requesting the computer code to test the verity of the readings produced by the instrument is not unreasonable

 

CMI ignores Minnosota Supreme Court order to release Breathalyzer Source Code

Source: Tech Dirt, Image Source  http://gadgetsteria.com    May 2009

Breathalyzers are a drunks worst nightmare. While some may be able to disguise their intoxicated prediciment through the use of gums, foods, other drinks, or other objects, once the cop whips out a breathalyser it’s all over. Or is it? For some time now, breathalyzers have come under scrutiny from many a prosecution arguing and fighting to see the source code that powers these modern day taddle tales. However the manufacturer, CMI, has time and time again vehemently refused citing “industry and company secrets” prevent them from doing so. So, who smells a fresh pie of BS baking in the oven? I do and boy am I hungry. So now that the Minnesota Supreme Court has ruled that the source code must be turned over, CMI is going to happily comply right?

Wrong! See the problem is is that anyone that has a breathalyzer used on them by law has a right to see the source code. You know, that whole thing where the convicted have the ability to face the accuser, in this case the electronic breathalyzer. Though as mentioned previously, CMI stays steadfast to their claims and basically tells us that their code is foolproof. However, their have been studies that have actually shown the code behind breathalyzers to be complete crap. So, once the Minnesota Supreme Court ruled earlier this month that it was illegal to withold a breathalyser’s source code from the accused, many common sense minded people and a few defense lawyers politely applauded in adoration as justice was finally being served. But the celebration appears to be short lived (for now) as apparently a supreme court ruling doesn’t mean squat in this country anymore. CMI still stubbornly clinging to their stupid and baseless claim is continuing to refuse the release of the source code. Apparently the love wasting money in court.

Forgetting all of the drama and non-sense above, CMI is contradicting themselves when they claim the source code is near and dear because of “company secrets” when at other times they have claimed that the source code is merely a series of basic and “straight-forward” calculations” So which is it. Some high tech likely flawed source code? Or is it some 3rd grade formula that is still grossly flawed?

One may ask themselves, “why are they dragging this out?” It is actually pretty simple. If the breathalyser code gets released and is found to be what many suspect, crap, then breathalyzers would lose their credibility meaning an utter nightmare for law enforcement employees as they have to now deal with every person currently behind bars because of a now proven to be flawed breathalyzer meaning an ungodly amount of retrails, not to mention the quick removal or at least temporary suspension from using such devices from proably every police task force. It sounds eerily similar to e-voting machines. They had a period of peak popularity, then once the bugs and glitches started appearing when the source code was opened, the s*** storm started happening. And a county without breathalyzers is a county with less fines. And with the current economic hardships, less money is a bad thing.

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