New DUI Defense Tactic: Demand the Intoxilyzer Source Code
Some DUI defense counsel have started to demand the source code for the Intoxilyzers that police use in breath tests. The manufacturer refuses, on trade secrets grounds, to release the source code, and some cases have been dismissed as a result. TalkLeft has more.
posted by pn at 4:17 PM
1 Comments:
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 a third party possesses the source code. The breathalyzer is being used by trhe state in DUI prosecutions. The state, therefore, should be required to obtain the source code as part of its contract with CMI, the manufacturer of the Intoxalyzer.
Attorney Brian E. Simoneau
Mass. DUI Lawyer
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