Saved by the Breath

The makers of a widely-used alcohol breathalyzer claim trade secret when asked to reveal programming details of their device; and as a result, some evidence produced by their device, the Intoxilyzer, was tossed out of court in a case upheld by a Florida appeals court back in 2004:

"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," Florida's 5th District Court of Appeal ruled…

Similar challenges have arisen in Florida and elsewhere, with conflicting court decisions that will eventually require resolution by higher courts, probably eventually by the Supreme Court. This AP report at Fox reviews the whole history of the controversy.

See some previous Reason writings on how refusing the tests can hurt you more legally than failing them; and a device that tells cops you refuse a pre-breathalyzer field sobriety test.

[Link via Rational Review.]

Comments

[Mike]

There's a judge in my county (Fairfax, VA) who's throwing out all DUI cases decided based on a blood alcohol level because he says its a presumption of guilt, and a .08 for a 200 lb guy who drinks all the time is not the same level of intoxication as it would be in a 90 lb girl who seldom drinks. Prosecutor/law enforcement was pissed.
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/26/AR2005102602572.html

[moonbiter]

he says its a presumption of guilt, and a .08 for a 200 lb guy who drinks all the time is not the same level of intoxication as it would be in a 90 lb girl who seldom drinks.

The "experienced drinker" part of this makes some sense, the ".08 is not the same for a 200 pounder vs. a 90 pounder does not."

[Peter T.]

Looks like the constitution had something to say about this:

Amendment VI (1791)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

It seems to me if the software--in fact, the device as a whole--is to be used as a prosecutorial 'witness' the defendent should have a right to cross-examine. In this case, to review the apparatus independently and verify its accuracy...or lack thereof.

In fact, that whole bit about finding witnesses in his favor seems to dictate he/she must be allowed an independent review of the apparatus and the full ability to refute its accusation..

[The Real Bill]

Good decision, but does anybody want to defend drinking and driving?

[David]

That depends on what you mean by drinking and driving. Are we talking about a person who's had a drink or two, but isn't really a danger, or someone who's inebriated and very dangerous?

In the case of the former, slight calibration/reliability issues with the device can mean severe penalties. The latter will probably have a BAC so high that it won't matter. So unless a person believes that someone who's had even one drink with dinner before driving is a dangerous felon, there is room for argument.

[The Real Bill]

David,

Fair enough, but I've known people for whom one drink was enough to impair their judgment and skills.

[johnl]

Bill there are people who are a menace behind the wheel without drinking at all, but that's not the point. Mystical mumbo jumbo can't be trial evidence. If they can get away with it for drunk driving they will pull out the lie detectors, "error free dogs", and testimony recovered under hypnosis. Oh wait.

[methodman]

heh..one person in my office just faxed this one over to his lawyer, and the other one will no doubt do the same when he arrives.