September 16, 2005 1:13 PM. September 16, 2005 8:36 AM. September 16, 2005 11:11 AM, “This is absolute crap. Write CSS OR LESS and hit save. Later a tech came and tested the detector, pronouncing it just fine. [3] http://www.spiegel.de/politik/deutschland/0,1518,374301,00.html On the contrary, I think of myself as very pro privacy. Kill ’em all, then let Alla sort ’em out. Clive Robinson • The developments actually led to laser and lidar and other more sophisticated technology with far higher accuracy. In Texas, when you are issued a citation for speeding, at trial the officer will usually testify (often in a rapid-fire exchange between him and the prosecutor) to the following: 1) That your high rate of speed attracted his attention to you, What Drugs Do Life Insurance Companies Test For? I agree that an officer actually starts with a “hunch” or observation and uses whatever evidence available to prove their case, but their behavior changes dramatically when they are led to believe that they only need one test. Later an engineer checked the system and pronounced it ineffective. That is the Blood Alcohol Content. It used to be thought that bearing false witness was evil. September 16, 2005 2:04 PM. The variation across counties is disheartening. Davi Ottenheimer • I’m personally glad these were thrown out. September 16, 2005 2:58 PM. attorney should care about anyway.). Hiring a DUI Lawyer. The scenario you outline is entirely possible, although details of particular cases are not widely available here. Worse they will almost certainly find some non photogenic low life scum bag with little or nothing but a sense of grevence about how they lost their licence for having flatened a baby in a pram whilst either driving at excessive speed, largered up or both. Living in Illinois, I have some local familiarity with the issue of folks being railroaded onto death row, unfortunately. Fred Page • Granted the “test” may not be totally reliable and that needs to be remedied but society as a whole needs to accept responsibility for their actions (I would like to think that everybody is honest and tells the truth; but, you know as well as I do that is not the case & that does go for law enforcement as well). September 16, 2005 11:36 AM. That … NOTE: Dealing with administrative penalties for DUI is different than handling court cases. Hopefully the testing is done by people who are intentionally trying to get false positives/negatives. Florida has freed a large number of inmates (including death row inmates) recently through new DNA testing that outright proved that these “convicted killers” were in fact innocent. Where to draw the line? Several other posters have noted that police often use digital photographs, videotapes, and the like as evidence at trial. The problem with DUI deaths isn’t primarily the lack of breathalyzer tests: it’s that we’re far too willing to say “yes, this person drove recklessly and killed someone, but we can’t prove they were drunk so it’s not a crime.” If someone runs over a pedestrian, it doesn’t really matter whether they were drunk, over-tired, or just stupid. In court, it would be reasonable to ask how precise the machines are and perhaps even have an expert to testify about the technical details, but asking for source code is plain silly. This is the correct decision, and we are all safer because of it. Unless, of course, you’re declared an “illegal combatant” and incarcerated without trial, access to counsel, or even a clear depiction of the charges against you, c.f. The very same arguments were made by the very same defense attorneys about 18 months prior in regards to mantinence manuals and schematics (The cases were Muldowny and Pitts), and the Appellate Court ruled that the State must provide those documents to the defense (which they were able to do because they actually had them in their possession). Numbers, however, are simple. Mike Sherwood • And ultimately, with the attitudes of a nation that is less willing to be properly diligent at seeking justice than to fight to stop something they fear without fully considering the consequences. dmc • The problem isn’t that we don’t know what makes the detector sensitive to alcohol. Also you will have to accept the odds are very very much against you. But he did so because his friend had insisted, saying he was too drunk to drive. Ok, here’s another analogy: Counterpane detects an attack on one of its client’s networks and provides the evidence needed to take the case to court. There is no end to the questions you can bring up (consider some of the questions here: high winds, exposure to another person, beer-soaked jacket, confusion with other molecules), and each of them has to be addressed to gain confidence. What Is Cash Surrender Value Of Life Insurance? Most drivers arrested for DUI believe that their matters will be resolved in a traffic court venue, and they will often opt to be represented by court-appointed public defenders who may already be overburdened with heavy workloads. September 16, 2005 3:54 PM. (Think of the implications for voting systems, for one.) We hope, but I am familiar with a judge who has believes laser-based speed traps are 100% accurate and stand on their own. Personnally, I think what should happen is that a blood draw should be taken and tested (from certified hospital/lab), and not rely on the breathalyzer machine. Not even the officials. Just like in the Source code issue. DUI charges are a preventative measures to get the ‘drink and drive’ people off the roads before anyone is killed. The original evidence was obviously faulty, or simply incomplete yet a jury found them guilty. According to the Orange County DUI attorneys, most DUI cases can be won. I suppose if constitutional issues arise even in a misdemeanor case, they can be considered all the way up to the state supreme court. In the case of the breathalyzer, the question is whether reasonable doubt does indeed exist that its indications are accurate. Fill in the blank: the name of this blog is Schneier on ___________ (required): Allowed HTML Hundreds of cases involving breath-alcohol tests have been thrown out by Seminole County judges in the past five months because the test’s manufacturer will not disclose how the machines work. Or the police officer stating that “he smelled whiskey from a mile away” ? If I take a picture of a crime with a digital camera, and there is no source code available, should the picture be thrown out? 5) the posted limit was Y mp/h, and In the early 21st century, for example, dismissal … September 16, 2005 11:34 AM. Many of the things I mention can (and should) be used as evidence of intent and/or capacity to commit a crime, when a crime has actually been committed, but in themselves they do not constitute crimes, nor are they acceptable as the only evidence of a crime having been committed. • • • •
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September 16, 2005 11:13 AM. If there were a large enough body of tests under a wide enough variety of conditions (performed under circumstances that everyone had reason to trust) then you might not need to know how the device works, but otherwise, well, geez. Here here! Note that even with a blood test, there are many ways to mess up the results, including preparing the area to draw blood from with alcohol. Me: You can test his accuracy and he’ll often be quite good. Skipping the under-oath part, the cross-examination starts with looking at the device’s internals and examining its source code. I worked at a facility with a lot of expensive equipment that got a latest-and-greatest fire detection and suppression system. September 16, 2005 1:44 PM, “If someone dies or is maimed in an accident, why would one go for the ‘cherry on top’ DUI charge? September 16, 2005 11:01 AM, I thought this was an important note in the article: “conviction rate has dropped to 50 percent or less”. Either the device works, (produces an accurate result) or it does not. It might also affect the determination of fault. The cop was just there to harrass. If arrested for DUI, insist on the blood test if you’re innocent. The high DUI conviction rates can be partly explained by the high number of drivers who plead guilty without fully understanding the consequences. I agree with your point, however – particuarly in cases where the person has no opportunity to gain an equivalent sample and have it independantly verified. The implied consent laws of all states require drivers who are lawfully arrested for driving under the influence (DUI) to agree to take a chemical test. Open up the system and it’s possible to test parts of it and ask intelligent questions, and it’s also possible to reason from systems you know are similar. However, after almost 2 years of fighting, once the manuals and schematics were handed over, not one motion was filed based on those “mysterious documents” from the defense bar. [4] http://www.cev.ie/htm/report/first_report.htm, Paul O • Davi Ottenheimer • But the detector, to be put to any good use use, has to be specific to the phenomenon of interest. It reminds me of a tragic twist of fate that was briefly mentioned in the news earlier this year: http://www.theadvertiser.news.com.au/common/story_page/0,5936,15123494%255E1702,00.html, “An unlicensed driver who fell asleep at the wheel of a car that crashed, killing a passenger, has walked free from court.”. Bruce Schneier • Isn’t this exactly what is done with, for example, radar guns?”. Chris Walsh • IANAL, but in many jurisictions, including Ontario (Canada), there is a “presumption of fault” when alcohol is involved. From the little I know of it the companies try every trick and wrigle to avoid being held accountable and there is little or no will in the judiciary to understand the issues involved. Dimitris Andrakakis • the methodology used to determine “drunkeness”, the technician cannot determine if the equipment is functinoing properly. Doc • September 18, 2005 1:50 PM, @Bruce, Sep16, “in which jurisdiction does a driver who kills or maims someone get convicted if drunk, but walk free if sober?”. A jail video shows that after Louisville Metro Police Officer Kyle Meany arrested Jorge Cejay, 27, Feb. 27 on a suspicion of drunk driving, Meany told Rehm the case would probably be dismissed … October 30, 2008 10:49 PM, i don’t think it matters why…the court will believe the breathalizer ‘has done it’s job anyway’ -so i’m going through the process and i’ll let ya know the outcome, TS • The chances are that your defense … September 16, 2005 3:13 PM. Why should it matter if the details of the innerworkings are not revealed, when there is an ENORMOUS statistical basis that the technology works correctly? I was hit by a drunk driver when I was a teenager. September 16, 2005 3:00 PM, “in which jurisdiction does a driver who kills or maims someone get convicted if drunk, but walk free if sober”. September 16, 2005 3:15 PM. Why would you trust a detector unless you knew how it worked? How does a DUI … Drop him a line if you like his writing, he loves hearing from his readers! What if, as part of the normal maintenance/operation of the equipment, technicians calibrate it using known samples of both “drunk” and “sober” air (or whatever), and as long as it performs properly across a suitable range of samples, it is considered to work? In 2006, for example, California prosecutors obtained an astonishing 90 percent conviction rate, which means that only 10 percent of DUI arrests were either dismissed, dropped or ruled in favor of the defendants. Absolutely. This is a delicate call to make and the above is usually only justifiable in the most serious of situations, with the most extreme of necessities. Indeed, the dishonesty of various crime lab scientists in the news recently (including the FBI, IIRC) suggests to me that the maximum amount of transparency should be required as a control against outright lying by experts as well as accidental errors by equipment designers/coders. Assembly Bill For Diversion in DUI Cases Opposed by CA Police & Prosecutors. September 16, 2005 10:16 AM. Data Is a Toxic Asset, So Why Not Throw It Out? Yes I understand people who are suspicious of the Police and all they do, but to divulge everything would have serious implications not only for public safety but also for the personal safety of Officers and their families. ALERT: Documents for civil (non-criminal) cases to be served on the Crown must now be served by email. I agree that we need to have the source code for defense purposes, but I don’t agree with you here. The law enforcement, judicial, administrative, and correctional resources dedicated to managing the various aspects of DUI are supported by billions of dollars paid by American taxpayers. It can serve as evidence that warrants collecting further evidence, in this case a blood test, but it cannot be relied on as the only evidence. September 16, 2005 11:13 AM. It’s not just about drunk driving, it’s about justice. “as long as it performs properly across a suitable range of samples, it is considered to work? While I realize that I lived, it’s not just a matter of death or maiming. September 16, 2005 9:28 AM, “Schneier, you are dead wrong on this one, bud”. September 16, 2005 3:38 PM, “I can’t wait for someone suing Bruce and demanding source code for counterpane’s custom monitoring systems.”. Fortunatly Bruce is right, there are correct tests that can be applied to check for blood alchol levels, if the Police / State are to lazy or tight fisted to do them, then it is upto them to show a judge that an offence has been commited without evidence… Otherwise what’s to stop a police officer pulling you over saying you are drunk, just to get his quota of arrests? But the human eyes, ears, and nose cannot measure the level of alcohol in the blood of human being; a device is required. Bruce Cleaver • September 16, 2005 8:23 AM, Ah, if only such openness were required for automated prosecutions in the UK; then we might at least have an escape-clause for the dreaded “Gatso” speed-cameras and the LTI-2020 speedguns which time brick walls doing 30MPH…, Chris Walsh • ARL • A radar (or other) gun isn’t used to convict you, it only gives a reason to pull you over. If the device is only tested in the lab against a few samples with varying levels of faux-exhaled alcohol (or metabolites) in it, you don’t even know whether it’s actually measuring alcohol, or just all molecules above a certain size/mass. As we have seen over and over if you screw up collecting evidence it is (and should be) grounds for removing the evidence. Finally there is considerable political will to stop such attempts for a number of reasons which basicaly boil down to revenue and votes. to verify his estimate, and The problem is the state lab that produces this sample tests the entire batch that they pull the concentration from and not the individual samples themselves. Jim loves to write, read, pedal around on his electric bike and dream of big things. If a defendant wishes to challenge the certification procedure (and full disclosure rules say that you know what evidence is coming your way at trial), the judge should defer the prosecution on the charge until that legal challenge is settled in a separate action. Why? For people to just let their bitterness and their so called compassion take over, you’ve missed the boat and you’re just being spiteful. a high false positive rate (which is all that a defense this is on top of the burden to show that the system gets tested and fire drills are run regularly. These cases are appealed to the Superior Court of Justice, and are heard before a judge of that court in the community where the trial was conducted. Cases that usually have more serious maximum penalties, such as murder, are called "indictable offences", and are appealed to the Court of Appeal for Ontario… Bruce’s earlier link to the article on crime-facilitating speech is an example; this and the attempt to shut down file-sharing networks, the DMCA itself, Sarbanes-Oxley, and all kinds of juvenile restrictions like forbidding hats in banks plus all the security “theatre” we like to bash all point to a childish obsession with avoiding risk that is not only ineffectual but risks losing all the freedoms we claim to value. September 16, 2005 12:47 PM. Clive Robinson • September 17, 2005 10:07 AM. See our Admin Per Se page for more information. Maybe with this wake up will slap the cops into shape and really keep us law abiding citizens safe. September 16, 2005 10:52 AM. Doc • Our justice system has had, at least until now, a strong constitutional bias against condemning the innocent, with the full knowledge that we thereby risk excusing the guilty. I was amazed at what gets by for scientific acceptance of the breathalyzer machine’s accurracy. In the case I was on, it didn’t matter however, due to the fact that the participant admitted to the officer that his driving may have been a little impaired. Fred Page • The detectors were tested by squirts of Freon. David • This system seems fair and just, and we don’t really need to know how the breath tester works, only that it is reliable because a lot of people could get upset about fivolous blood tests. Why DUI Cases Rarely Get Dismissed . It’s that we don’t know how reliably it is sensitive to alcohol, or how often it will say “alcohol” when there is no alcohol there. Someone involved in the Florida Cases • September 16, 2005 9:07 AM. In the speeding example , a trained observer can usually make an accurate prediction about the speed of a large object. “Unless, of course, you’re declared an “illegal combatant” and incarcerated without trial, access to counsel, or even a clear depiction of the charges against you, c.f. September 16, 2005 9:01 AM. Simply, you don’t know exactly what technology is being used, and you don’t know if it’s being used correctly. The statutes, regulations and rules of procedure that govern DUI at the state level are constantly changing. It may seem silly … If you don’t know how it fails, then how do you know it isn’t likely to fail in this particular case? The theory behind gizmos like this is (from some literature) easily solid enough to support the results, but without solid information about how that theory is implemented, you could have pretty much anything in there.