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Breathalyzer company refuses to turn over source code

Breathalyzer company refuses to turn over source code

By Stephen Feller
2005.11.05

The maker of the Intoxilyzer 5000 breathalyzer, CMI Inc., has informed prosecutors involved in several DUI cases in Sarasota County, Florida, that it will not assist prosecutors in complying with a judicial order to allow an expert hired by defense attorneys to review the source code for software used in the device.

On November 2, a three-judge panel ordered prosecutors to hand over the source code within 15 days, or by November 17, in conjunction with a state law that says defendants have a right to all information about the operation of computerized devices used as evidence in court, including manuals, troubleshooting guides and, potentially, source code for software.

The case has received a lot of attention in the open source and technology communities, in many ways because it is being seen as compelling evidence that devices with the potential to affect individuals' freedom or liberty - such as breathalyzers used in DUI cases and electronic voting machines in elections - should utilize open source software and be available for any citizen to review. And while open source software would prevent the need for a court order, the case is really about knowing that software is doing what it is designed to do.

Defense Attorney Robert Harrison, who represents several of the 156 defendants who could be affected by the outcome of the source code review, requested the state release the source code for the Intoxilyzer. Harrison said it was clear that either the software or the device itself, based on wide-ranging anecdotal evidence, may not be accurate in assessing a person's blood alcohol level.

"I was pleasantly surprised by the judgment," Harrison said. "The way that we have presented our case, the law, without question, supported where we were. My belief was that the court either had to grant our relief or ignore the law ... My hat's off to [the judges] for having the courage to deal with it."

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