Breath Test Source Code Controversy

Published Tuesday
November 15, 2005

Whistle blown on breath tests

BY TODD COOPER

WORLD-HERALD STAFF WRITER

For more than 25 years, police and prosecutors have relied on breath-
test devices to determine whether a driver is drunk.

But now, local defense attorneys are following a Florida trend and
challenging the machines. They’re asking judges to order prosecutors
to reveal how the machines operate, including the computer code that
makes them tick.

If they don’t get the information, the attorneys say, they will ask
judges to throw out the breath tests – an action that would doom
hundreds of drunken-driving prosecutions.

The question is: Are the attorneys’ requests simply hot air, a
weightless attempt to get clients off on a technicality?

Or, as defense attorneys ask, are the breath-test devices “mystery
machines” that are unworthy of the weight they have been given in
court?

Both sides have squared off in a courthouse battle that has DWI
attorneys salivating, prosecutors scrambling and judges pondering
how they will rule.

Following the lead of Omaha attorney Steve Lefler, several attorneys
have asked, or will ask, judges to order prosecutors to turn over
the breath-test devices’ source code – a computer program that
basically tells the machine how to operate.

So far, two judges have ordered prosecutors to do so – or explain
why they can’t. But prosecutors have said they won’t turn it over,
in part because they don’t have it. The source code, they say, is
proprietary to the machine’s maker.

The issue is expected to come to a head Thursday, when Lefler will
ask Douglas County Judge Stephen Swartz to throw out breath-test
results in two cases.

But both sides believe the issue will go to a high court because of
the high stakes: Nearly 14,000 Nebraska drivers – about 5,000 in
Douglas County alone – were arrested for driving while intoxicated
in 2004. The vast majority were arrested after a breath test.

“This machine has been treated as if it’s the machine behind the
Wizard of Oz’s curtains,” Lefler said. “We ought to be able to
ensure that it’s accurate.”

But Omaha City Prosecutor Marty Conboy said the state already has
ensured the machines’ accuracy.

Under state law, the Nebraska Health and Human Services System is
charged with licensing and regulating the machines. HHS holds public
hearings on the devices and routinely tests them using a solution
with a known alcoholic content. Any machine that doesn’t measure the
alcohol within a narrow range must be repaired.

Now, Conboy said, Lefler and other attorneys want judges to play the
role of scientists – and determine the reliability of a machine that
is thoroughly tested and nationally accepted.

Not only is that imprudent, Conboy said, it’s impractical. Conboy
said he would have to spend thousands of taxpayer dollars to bring
in an expert to vouch for the machines.

“You get a judge to make this kind of a decision, it’s like lighting
gasoline on fire,” he said.

The gasoline – or, perhaps, the alcohol – is ablaze in a few Florida
counties. In one, judges have thrown out more than 700 cases because
prosecutors didn’t turn over the source code.

An appellate court in another county held that: “An instrument or
machine that, if believed, establishes the guilt of an accused
subjecting them to fines, loss of driving privileges and loss of
freedom should be made available to the defense for open inspection.”

Lefler said he brought the issue to Nebraska after reading about
those challenges – and contacting Florida attorneys.

“I’ve kicked myself in the butt several times,” said Lefler, who has
represented dozens of drunken drivers in his 28 years as a
lawyer. “You just wonder, ‘Why didn’t I think of this before?'”

Others are just glad Lefler read about it. Attorneys James Schaefer
and Glenn Shapiro said they are in line to file “Lefler motions” on
30 cases.

“If those machines have real problems and (the maker) has been
hiding it from us,” Shapiro said, “then it’s our duty to blow the
whistle on this.”

Conboy said prosecutors have given defense attorneys owners’ manuals
and repair records for the machines. He dismissed efforts to obtain
the source codes as “lawyering by blog.” Many other Florida judges,
he noted, have refused to compel prosecutors to disclose the source
codes.

In his career, Conboy said he has overseen the prosecution of more
than 100,000 drunken drivers using breath tests. The tests, he said,
were buttressed by an officer’s observation of the motorist’s
erratic driving.

“I have confidence that in every single one of those cases, the
person was guilty,” he said.

Lefler doesn’t have similar confidence – especially, he said, if he
can’t see the machine’s makeup.

The machines employ a decades-old process called infrared
spectrophotometry to measure someone’s breath for alcoholic content.

Lefler compared the devices to a personal computer – one that he can
count on to have glitches. But Conboy said they are as simple as a
bathroom scale.

Just how will judges weigh in on the issue?

Whatever they decide, Lefler said, he would like the county’s 12
judges to rule uniformly.

“How do you say to someone, ‘You had the bad luck of getting a judge
who feels that the source code doesn’t have to be turned over,'” he
said. “Meanwhile, his buddy is acquitted because another judge ruled
that the state cannot use the breath-test results.”

A consensus appears far from likely. After two judges ordered
prosecutors to turn over the source code – or explain why they
couldn’t – a third, Judge Lyn White, peppered Lefler with questions
about why she should. She has yet to rule.

“You can always find a judge somewhere who will make a radical
ruling,” Conboy said. “But it isn’t the way you review science.”

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