Tuesday, October 9, 2007

Intoxilyzer Co. giving up Source Code

California Drunk Driving / DUI Criminal Defense Lawyer news

Facing court fines and the possibility of losing future sales, the company that manufactures the state's drunken-driving breath-test machines has agreed to give DUI defendants a look at how one works.

What DUI criminal defense attorneys hope to find inside is proof of their suspicions that the software inside the briefcase-size machines makes mistakes while calculating a driver's blood-alcohol content from a breath sample.

So far, they remain only suspicions. In courts across the country, CMI Inc. of Kentucky has refused to disclose the "source code" of the software in the widely used Intoxilyzer machines.

But now that refusal is hurting CMI in the pocketbook, and the company is agreeing to release the code under certain conditions.

Judges in Sarasota and Manatee counties -- where more than 300 DUI cases are stuck in the system -- have fined CMI more than $100,000 for not allowing computer experts for the DUI criminal defense attorneys to view the software's source code.

And Minnesota is considering scrapping CMI machines for a competitor's devices so prosecutors have results that will not be thrown out of court, according to Minneapolis- area DUI criminal defense attorney Jeffrey Sheridan.

"They're starting to understand they're going to lose their market share, and they're starting to wake up and decide to do something," said Sheridan, who won a state Supreme Court battle over CMI's source code this year.

Defense attorneys have challenged the Intoxilyzer machines on the software issue for nearly two years, insisting that DUI criminal defendants should know everything about a machine that could send them to prison.

A blood-alcohol content reading is the most powerful piece of evidence against a drunken driver, and errors in the software could mean drivers never know if the machine is working properly, DUI criminal defense attorneys say.

CMI has refused to turn over the source code, saying it is a trade secret that its competitors can use to learn how it is so successful -- and does nothing to prove the accuracy of the machines.

Intoxilyzers have been tested in laboratories and the field, CMI says.

Law enforcement officials in 20 states use the machines. But in a letter to clients that is spreading through defense attorney circles, CMI president Toby Hall acknowledged that the source code issue is causing problems for prosecutors.

Hall writes that the company would now allow "controlled viewing" -- with a protection order and nondisclosure agreements -- when ordered by a "competent court of jurisdiction."

"The denial of access to CMI's intellectual property has put a strain on our customers' resources in supporting their programs," Hall states in the letter.

A Sarasota County judge called the backup of DUI cases here "a tremendous glut," and fined the company $3,200 per day until it turned over the source code for the newest machine in Florida, the Intoxilyzer 8000.

"They had totally blown us off here and the daily fine is now six figures, and they can't ignore that," said Venice defense attorney Robert Harrison.

The Florida Department of Law Enforcement, which tested the machines and contends that they work, has not received a letter from CMI, FDLE spokeswoman Heather Smith said Thursday.

"If having the source code available will help encourage transparency in how it operates, that will be a positive thing and provide assurances the instrument works exactly as it should," Smith said.

But DUI criminal defense attorneys are still skeptical. Sheridan said DUI criminal defense lawyers were not likely to agree to the conditions CMI is putting on the viewing.

"It's just CMI's new way of saying no," Sheridan said.