(no subject)

[theweaselking]

DUI defendant wins right to see source code, inner workings of breathalyzer.

Comments

[elffin.livejournal.com]

Awesome. I suspect that will set a precedent. Defendants have the right to argue whether evidence being used against them is bad on current, accepted and prevailing science and scientific theory.

This could lead towards - for example - the source code of spyware prevention and antivirus softwares and forensics apps being entered into (admittedly in-camera) court proceedings for cases such as the substitute teacher convicted of showing indecent material to minors because the computer was riddled with adware.

[squizzlzilla.livejournal.com]

surely what's significant to the accurate functioning of a breathalyzer is it having a valid, current calibration certificate, and that this can be reasonably proven to demonstrate blood alcohol levels... the internal functioning of the device in question is largely irrelevant, as long is it works reliably?

[theweaselking.livejournal.com]

That is correct.

However, breathalyzers are notoriously *inaccurate*, give wildly divergent readings based on the body chemistry of the subject, and, in fact, rarely show an accurate BAC, at all. Blood tests are required to show BAC - and most North American laws don't require the prosecution to
A) retain your blood sample so you can have it checked by the defense
B) check the accuracy of their tests.

Arguments about BAC as a measure of sobriety are a separate issue - I know people who can down a bottle of vodka and then perform some very impressive acts of hand-eye coordination with no noticeable impairment[1] and I know people who are staggering and slurring after one drink.

The laws on drunk driving in North America? They're FUCKED UP. Deeply. If you're brought in on a suspected DUI, you lose the presumption of innocence, the right to avoid self-incrimination, the right to an independent examination of the evidence against you, and a whole host of other things. There's a reason it's referred to as "the DUI exception to the constitution" (http://www.duicenter.com/lectures/exception01.html)

Drunk driving is dangerous, drunk drivers are stupid. The laws involved, however, essentially require you to DISPROVE the allegation that you were too drunk to drive, and then make it impossible for you to do so - and they determine if you were drunk or not using shoddy, inaccurate tools *because those tools allow more convictions*.

[1]: they don't drive anyway, because "no noticeable impairment" to an observer is not the same as "no impairment" and they're not stupid - even if they *can* do the same things drunk as sober, being drunk they're now putting all their attention into driving safely, and have nothing left over to deal with emergencies like, say *other* drivers being unsafe. Besides, playing video games and dancing and even sparring while drunk doesn't risk your life. Driving does, and nobody wants to bet on that and lose.

[squizzlzilla.livejournal.com]

In that case I'd agree that arguing over disclosure of the source code is justifiable, albeit novel, approach.

[squizzlzilla.livejournal.com]

and I just read some of the 'dui exception' article. that's just fucked up, even for America.

[theweaselking.livejournal.com]

Now, that guy's a DUI defense lawyer, so take it with a grain of salt - but while he's framing it to make his argument in the most convincing way, he's still right in the details.

[jsbowden.livejournal.com]

In VA, you have the right to refuse a breathalyzer and have a BAC done instead, but you have to pay for it. A breathalyzer will declare you multiple times over the limit by you doing nothing more than gargling with vodka and then spitting it out, and it'll do that for at least an hour. All it measures (badly) is the alcohol content of your breath, which has nothing to do with the alcohol content of your blood.