The implementation of the Ignition Interlock requirement in the four “pilot” counties was contingent upon funding to be created to cover the costs of the program. The law offices of Kapsack and Bair continue to investigate the source of the pilot program funding (Freedom of Information Requests have been served on the District Attorney for Alameda County, the Department of Motor Vehicles, California Attorney General and other government agencies), it appears likely that if you were arrested for a DUI after July 1, 2010 you will have to add an Ignition Interlock to the cost of losing your first offense DUI case.

Under legislation currently before the Public Safety Committee, if you are arrested and then convicted of a second offense DUI you will be eligible for a restricted license after 90 days of actual suspension after installing the Ignition Interlock Device. In the four pilot counties second offenders will be required to install the ignition interlock devices for a minimum of twelve months.

While it remains to be seen what will happen to individuals currently serving suspensions for multiple DUI convictions or administrative actions, it seems likely that the shortened suspension periods will only effect those persons violating the DUI statututes after July 1, 2010.  It also remains unclear whether persons who’s licenses are suspended through the administrative process will be eligible for the same treatment.  Meaning, if your license is suspended for a multiple time for through the administrative process, and you are convicted of a multiple offense DUI in court, you may not be eligible for the shorter restriction following installation of the Ignition Interlock Device.

It is almost the same investigation that was used in evaluating voting machines. That investigation, and software evaluation, revealed a number of flaws which were felt to undermine the reliability of the machines.

In other words, the same type of information that is being sought by people ACCUSED OF CRIMES was turned over for evaluating voting machines. Upon analysis it was determined the machines didn’t pass muster. I am not sure about you, but seems to me that putting people in jail is at least as important as putting someone in office, and that if a machine is not sufficient for the latter it certainly is not for the former.

Suppose you were accused of a crime? Further, suppose that the only witness against you states under oath that they ran a test that proves your guilt beyond a reasonable doubt. In fact, in some courts, you can not even present evidence against this witness.

Would you consider this fair? Wouldn’t you like to know how the test was conducted? Wouldn’t you like to know how it was graded? Wouldn’t you like to know that the math, answers and all other aspects were legitimate?

That is what source code litigation is all about. Simply put it is the right to find out how the breath machines work. All that is being sought is how do the machines do what they claim they can do.

Is this just a fishing expedition, an exercise in futility and merely an excuse to use up resources and cause delay? You be the judge.

Throughout the time of the Intoxilyzer use in California and elsewhere the manufacturer indicated that these machines performed regular ‘self diagnostics’. For years it was assumed that this was true. Then one December a group of defense attorneys and experts decided to test this program by removing a number of the critical parts of the breath machine and running the program. Turns out that 13 critical parts of the machine can be removed and the self diagnostic still gives an “OK” message.

Think about this; the machine can have a vital part disconnected and it will still tell the police it is operable, still give a reading and STILL CONVICT CITIZENS. In fact, this author brought this to the attention of the Contra Costa crime lab, AND THEY STOPPED USING THOSE MACHINES.

Additionally, it was discovered, through experiments, that when the machine clears itself in between tests, it does not really do so. What the machine truly does is LIE. It prints out that there is no residual alcohol in the machine which would lead one to believe it is empty, and that is exactly what the manufacturer warranted, but what it really does is measure the residual alcohol and allegedly subtracts that from the next sample.

Wouldn’t you like to know if this works? Does the machine round up or down?

Now, given these two examples, BOTH CONTAINED IN THE SOFTWARE, isn’t it reasonable to allow the accused the right to see what other shenanigans may be going on? In every other aspect of criminal defense the accused can see the witness against them, test or retest the evidence, and obtain a full report of how the expert for the government came to its conclusion. But not when it comes to a DUI. The breath is destroyed, the machine is immune from questioning and the manufacturer will not tell anyone, INCLUDING THE GOVERNMENT, how it works.

All that the source code litigation is demanding is disclosure and fairness. Besides, if you had faith in your processes, why would you try to hide them?

For persons looking for a less extreme approach, Stephen J. Dubner wrote a column relating to breath testing technology that other countries employ to help remove the “guess work” from guessing whether its safe to drive.

Two years ago the FBI rejected the notion that lead bullets could be linked to a crime scene through analysis of the chemical composition of the bullet and bullets subsequently found on a suspect. This “scientific” technique was based on the theory that each “batch” of lead from which bullets were made had some sort of unique quality that could separate each one batch from another. The technique was initially developed when President Kennedy was assassinated and grew to be a commonly accepted science, then, in 2004, the National Academy of Sciences determined that the technique was unreliable and misleading. Interestingly, the technique was commonly accepted for over three decades before finally it was deemed unreliable.

Now, you would think that the FBI would make it a priority to discover which convictions were based in full or in part upon the misleading “scientific” technique, since our justice system is founded upon “innocent until proven guilty” and a lot of societal lip service is given to the importance of freedom, yet nothing has been done.

It is a sad, sad statement on our legal system that citizen’s who may have wrongly convicted for crimes based on this “scientific” technique continue to sit in jail with no one fighting the wrongful nature of the conviction.

You may ask yourself, why would a blog dedicated to DUI find this interesting? Well, as it turns out we have been fighting over breath testing for decades, the only true measure is that from the blood, every other measure is a “scientific” guess based upon some circumstantial evidence. The breath is measured either by elctrochemical cell technology or by infrared spectroscopy, neither of which measure the actual blood alcohol concentration. Will we eventually prevail on the issue of breath testing as circumstantial evidence as opposed to direct evidence? Will we ever manage to win the challenge that the “technology” is merely a guess? That the foundation of the theory is dubious and that the results are “unreliable and misleading?” One can only hope…

The technology is currently only used to run license plates against a list of stolen cars, it doesn’t take much to swee the possibility of running licenses against other data bases, cars without insurance, drivers with suspended licenses, how about just tracking citizens on the road?

What I am curious about is, who will buy this car? If Nissan thinks a person who drinks and drives will purchase it, I think they may be mistaken. At what levels will the car set off its warning systems? While .08 is the legal limit some States have levels at which sobriety is presumed. If a drunk driver is involved in an accident driving one of these cars, will Nissan have liability? For further information on the car click here.

We haven’t had the opportunity to see one of these devices in action to determine how accurate it is in its measurements or ability to determine whether what it is rteading is ethyl alcohol or some other compound with a similar molecular structure. Alcohol specificity is a common problem for non-invasive blood alcohol measuring devices. Trutouch Technologies must also get Federal approval and join the list of “conforming devices.”

While we have not seen this technology used by any law enforcement agencies that we work with it is important to note that it may be coming to a police force near you.

Roadside breath test devices typically use an electro-chemical reaction to measure breath alcohol content. Air, from a suspect or calibration machine, is blown over a porous disc. This disc is a wafer of materials, one of which will react with the alcohol, freeing electrons and causing a small electrical current. This current is measured and then translated in to an alleged Breath alcohol content.

In order to ensure a “good” breath sample, the devices measure the flow time of the air sample and “capture” a sample near the end of the “average” persons breath. Some devices are also equipped to allow a “manual” capture by the officer if the flow rate and time is not met. This is done by the simple pushing of a button.

Typically in breath testing, not all of a person’s breath is tested, only a small portion is reviewed. This is done by a simple piston popping closed once blow time or manual trapping has occurred. This sample is then analyzed and the results displayed.

Problems with Roadside Breath Machines
Because these devices only sample the air stream, they can easily end of measuring mouth alcohol instead of true breath (also known as deep lung alcohol). Laboratory machines typically have a “slope detector” that allows a trained operator to distinguish between the two. With a slope detector there is constant monitoring of the breath as it passes through the sample chamber and an evaluation made. Any rapid falling off of the alcohol level, or “slope”, triggers the sensor to indicate mouth alcohol.

Next, these machines are subject to more calibration problems. Unlike their big brothers, these machines are not being kept and maintained by laboratories and their staff. Most are housed by local cops or CHP. The maintenance, or more appropriately, calibration is being done by police officers with no scientific back ground.

Depending on the underlying technology, some roadside breath analyzers might be subject to other serious problems. For example, with fuel cell devices there is a lack of specificity: the devices will detect a large number of chemical compounds, indiscriminately “reading” them as ethanol. Although the manufacturers of the passive alcohol sensor claim in their advertisements that it “is unaffected by acetone, paint and glue fumes, foods, confectionery, methane and practically any other substance likely to be found in the breath,” the fact remains that any device using fuel cell oxidation is not specific for ethanol; the manufacturer’s use of the term “practically” should certainly create suspicion.