Thursday, May 14, 2009

Why can't DUI lawyers get the breath test machines' source codes? Because the State doesn't have it?

DUI attorneys who practice in California are familiar with Compulsory Process and The Right of Access to Information:

Defendants have a constitutional right to investigate their case and of access to evidence. See Crane v. Kentucky, 476 U.S. 683, 690-91 [106 S.Ct. 2142, 90 L.Ed.2d 636] (1986); California v. Trombetta, 467 U.S. 479, 485 [104 S.Ct. 2528, 81 L.Ed.2d 413] (1984); Washington v. Texas, 388 U.S. 14, 19 [87 S.Ct. 1920, 18 L.Ed.2d 1019] (1967); see also Rock v. Arkansas, 483 U.S. 44, 51-53 [107 S.Ct. 2704, 97 L.Ed.2d 37] (1987); Taylor v. Illinois, 484 U.S. 400, 408-09 [108 S.Ct. 646, 98 L.Ed.2d 798] (1988); Chambers v. Mississippi, 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297] (1973).

In the New York case of People v. Robinson 53 A.D.3d 63, 67, 860 N.Y.S.2d 159, 163 (N.Y.A.D. 2 Dept.,2008), cases allowing access to breath testing evidence were reviewed:

“Indeed, case law has recognized the defendant's right, in prosecutions charging driving while intoxicated and related offenses, to disclosure of various documents not expressly listed in CPL 240.20 ( see Matter of Constantine v. Leto, 157 A.D.2d 376, 378, 557 N.Y.S.2d 611 [records indicating that a machine was not operating properly are discoverable, as are the State Police rules and regulations, the operational checklist, and calibration records]; People v. Crandall, 228 A.D.2d 794, 795, 644 N.Y.S.2d 817 [documents relating to ampoule analysis and simulator solution analysis are subject to disclosure]; People v. Erickson, 156 A.D.2d 760, 762, 549 N.Y.S.2d 182 [breathalyzer operator's permit and the weekly test record are subject to disclosure]; People v. DiLorenzo, 134 Misc.2d 1000, 1002-1004, 513 N.Y.S.2d 938) [several specific documents are subject to disclosure]; see also People v. Alvarez, 70 N.Y.2d 375, 380, 521 N.Y.S.2d 212, 515 N.E.2d 898 [defendant may not be denied discovery which prevents him from challenging the reliability and accuracy of a breathalyzer machine]) ( see Gerstenzang and Sills, Handling the DWI Case in New York, § 20:39, at 431 [2007-2008 ed]).

Nevertheless, the Robinson court (as many state appeals courts have) denied the defendant access to the source codes, holding that they couldn’t order what the State didn’t possess.

The Nebraska Supreme Court held that admission of breath alcohol analysis results without granting the defendant access to the source code of the breath machine which performed the analysis did not violate Sixth Amendment right to confrontation, according to State v. Kuhl 276 Neb. 497, 755 N.W.2d 389 (Neb.,2008)

In State v. Underdahl 749 N.W.2d 117, 119 (Minn.App.,2008) the Appellate Court denied a defendant access to the source code, requiring a district court's determination that the computer source code for the Intoxilyzer 5000EN is relevant to a defendant's guilt or innocence be premised on a showing that an examination of the instrument's software would show defects in its operation or at least would be necessary to determine whether defects exist. Since such a showing was not made, the ditrict court’s ruling was reversed.

In State v. Bastos 985 So.2d 37 (Fla.App. 3 Dist.,2008), a Florida trial court ruled:

“[C]redible testimony explains that the state has substituted the results of the Intoxilyzer 5000 for the analysis of a forensic chemist. Although defendants cannot cross-examine a machine as they could a chemist, this constitutional right to investigate the evidence against them gives the defendants a right to understand how the machine calculates and reports the breath alcohol reading, how and when the machines does or does not filter out or report the presence of other molecularly similar substances in the breath, and how and when the machine makes all of its other determinations and reports such as mouth alcohol or radio interference…”

Nevertheless, the Bastos appellate court overruled the trial court, finding that there was no showing that any possible errors observed in the operation of the machine necessitated access to the source code itself. State v. Bastos 985 So.2d 37, 42 (Fla.App. 3 Dist.,2008)

Thus, they held, the source code for the breath test machine used in defendants' cases was not “material,” within the meaning of the provision of the uniform law to secure the attendance of witnesses from within or without a state in criminal proceedings. State v. Bastos 985 So.2d 37 (Fla.App. 3 Dist.,2008)

The Bastos court distinguished its holding from another Florida appeals case involving access to evidence. In State v. Bjorkland 78 U.S.P.Q.2d 1793, 1796 -1797 (Fla.Cir.2005) , it was held that the defendants had demonstrated a reasonable necessity for production of the source code. The State therein had failed to establish any record setting forth available alternatives, or lack of materiality, or irreparable harm to the manufacturer of the software. Other than simply asserting that CMI was unwilling to produce the source code, the State in Bjorklund did not present any evidence rebutting reasonable necessity. Based on the record presented in that case, the court made the factual finding that the defendants had established that the source code was material to their theory of defense in these cases. The defendants established through expert testimony that the source code was reasonably necessary to determine whether the Intoxilyzer in fact contained the software approved by the State of Florida; whether it was functioning as per the approved source code, and whether any alterations had affected its operation or reliability. In so allowing, Bjorklund also commented on the following:

Section 316.1932 (4), Fla. Stat., (2005), specifically provides that “full information” regarding the test taken “shall be made available” to the persons tested or their attorney. One would assume full information means just that, full information.

Section 90.506, Fla. Stat., (2005), also provides that the trade secret privilege is not allowed where it would “otherwise work injustice” *1797 and that the court may take appropriate measures to protect the holder of the privilege.

Where defendants faces criminal sanctions, including incarceration and loss of driving privileges, it would be contrary to the purpose of sections 316.1932 and 90.506 to permit the state to assert a trade secret privilege on behalf of its contractor and thereby prohibit these defendants from obtaining information relevant to the instrument that is used to prove their guilt.

Where a state enters into a contract with a breathalyzer manufacturer pursuant to which the state obtains a possessory interest in the source codes and other relevant copyrightable material, and concurrently obligates the manufacturer to provide relevant technical information to defense attorneys, that state may make itself subject to statutory disclosure requirements. Since the State of Minnesota entered into such a contract with the manufacturer of the Intoxilyzer, it was obligated to disclose the source codes to a person charged with driving under the influence of alcohol ( see Matter of Commr. of Public Safety, 735 N.W.2d 706, 713 [Minn. 2007] ).

In the Georgia case of Hills v. State 291 Ga.App. 873, 663 S.E.2d 265 (Ga.App.,2008) it was held that a DWI defendant was not entitled to discovery of the source code used in the breath testing machine, since the code was not within the possession, control, or custody of the state; the machine's software was not created for the state, and the state did not own code and was not otherwise in possession or control of the code.