DUI Trial by Machine — But How Good Are the Machines?

Posted by Lawrence Taylor on August 25th, 2009 www.dui blog.com

All states now have two drunk driving laws: (1) driving under the influence of alcohol (aka “DUI”, with local variations, such as “driving while intoxicated” or “DWI”), and (2) the so-called per se law of driving with .08% or higher blood-alcohol concentration (BAC). Unless you refuse to take a chemical test, you will be charged and prosecuted for both offenses — and can be convicted of both.

The breath machines (commonly — and inaccurately — referred to as “Breathalyzers”) used to obtain the BAC are, obviously, critical to the drunk driving case. As for the per se offense, the only evidence of the crime is the machine: if the thing says .08% or higher and the jury believes it, the defendant is guilty. In effect, if you are accused of driving with .08% BAC, you will face "trial by machine" — and you will not be able to confront your accuser.

It gets worse….Even as to the DUI charge, the readings will be considered presumptive: if the BAC is .08% or higher, the jury will be instructed by the judge that the defendant is presumed to be guilty: he must be found guilty unless he can prove his innocence. See “Whatever Happened to the Presumption of Innocence?”.

These machines are all-important: they determine guilt or innocence. But despite the manufacturers refusing court orders to disclose the software that runs the machines, they continue to assure us that the things are “state of the art”. So how accurate are they?

I’ve posted repeatedly in the past about the continuing refusal of the manufacturers of various breath-testing machines to devulge the secret software used to run them. The readings of these devices are, of course, critical: tens of thousands of citizens continue to be accused and convicted based based upon them.

What are they hiding?

The courts in a number of states have ruled that the defense has a right to know whether the code — critical to the accuracy of the machines’ readings — is reliable and accurate. See Judge Orders Secrets of Breath Machine Revealed, Judge: Divulge Breathalyzer Code…or Else , Secret Breathalyzer Still Secret, Second Manufacturer Must Reveal Secrets. Yet, the corporations manufacturing these highly profitable machines refuse to comply. In only once case, where the New Jersey Supreme Court ordered the manufacturer of the Alcotest 7110 to turn over the code, experts found the software running the machine to be antiquated, unreliable and inaccurate. See Secret Breathalyzer Software Finally Revealed.

Judge: Prosecutors Must Get DUI Breath-Test Software Code

Tucson, AZ. Oct. 27 - A judge ordered the Pima County Attorney’s Office to ask a leading manufacturer of alcohol breath-test machines to reveal its software code.

Superior Court Judge Deborah Bernini noted Monday that Owensboro, Ky.-based CMI Inc. so far has refused to divulge its source code to defense attorneys, despite a previous order.

"Every lawyer in this room should be concerned about CMI’s unwillingness to follow the court’s order," Bernini said.

Bernini said CMI must hand over its source code in electronic form by Nov. 10…

Defense attorneys asked for – and Bernini ordered – the source code in electronic form so they can test its veracity.

"This information would be available with ease in an email," Bernini said Monday.

She noted that she even allowed extra time for CMI to give the code to lead defense attorney James Nesci.

"They had all the time in the world to comply with the order and/or suggest why the order was in error," Bernini said. "They have chosen not to do so."

Bernini set a Nov. 24 hearing for CMI President Toby Hall to explain why he and CMI shouldn’t be held in contempt of court for not following her order.

Deputy County Attorney Robin Schwartz told Bernini that she isn’t sure prosecutors can get CMI to divulge the source code either.

Defense attorneys in the 23 alleged drunken-driving cases before Bernini want the source code so they can check for accuracy of breath tests for alcohol.

"I don’t think CMI will ever turn over the source code," Nesci told Bernini. "I think CMI is hiding something in the source code," Nesci said.

Nesci said the Intoxilyzer 8000, which is used by Tucson police, isn’t as effective as CMI claims it is and divulging the source code would prove it.

"If they’re found to be untruthful to the people who have spent millions of dollars for their equipment, they could be sued into oblivion," Nesci said.

Nesci said absent the source code, the defense wanted Bernini to dismiss the cases or suppress the breath-test evidence.

What are they hiding?