DUI defendant wants breathalyzer source code

Audio and video cables are notorious for being overpriced, but they have nothing on breathalyzer accessories. Law enforcement can buy a 10-foot direct connect cable for the Intoxilyzer 5000 for only $98, while a 2400-baud external modem (I kid you not) goes for a mere $297.

But it’s not the price of such accessories that has DUI defendants agitated; it’s the fact that breathalyzer software is secret. Across the country, attorneys are increasingly turning to the “source code defense,” claiming that they have no idea if cops’ breath detection equipment is accurate without peering through the device’s software. In the most recent challenge of this kind, the Kentucky Court of Appeals has demanded that the source code be opened for review. (link)

2 Responses to “DUI defendant wants breathalyzer source code”

  1. 1 Massachusetts DUI Attorney December 7, 2009 at 1:50 am

    Contrary to popular belief, a breathalyzer does not directly measure blood alcohol. Instead, it reads the alcohol in the person’s breath and uses a computer program to extrapolate the breath alcohol reading into a blood alcohol reading. Consequently, it seems to me that this computer program (the “source code”) should be made available to DUI defense lawyers.

    It is axiomatic that discovery rules require the disclosure or relevant evidence or that which would lead to such evidence. Here, there can be little dispute that the programming of the breathalyzer is discoverable. This information should be produced, perhaps subject to a protective order, to allow defense experts to determine whether the breathalyzer accurately measures blood alcohol.

    It should be of no consequence that the source code is possessed by a third party, the manufacturer of the intoxalyzer. The state should require CMI, the intoxalyzer manufacturer to supply the source code. Otherwise, breath tests conducted with the intoxalyzer should be suppressed.

    Attorney Brian E. Simoneau
    Mass. DUI Lawyer

    • 2 jtsmyth8 December 8, 2009 at 12:28 pm

      Thanks for the clarification.

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