You Be The Judge

I apparently missed this one.  The Minnesota State Supreme Court has ruled that defendants in DWI cases do indeed have the right to confront their accusers in open court.  Even when their accuser is a machine.

According to the Pioneer Press:

Minnesota may be forced to drop thousands of driving-while-impaired cases and change the way it prosecutes others in the wake of a state Supreme Court ruling Thursday, prosecutors and defense attorneys agreed.

The state's highest court ruled that defendants in drunken-driving cases have the right to make prosecutors turn over the computer "source code" that runs the Intoxilyzer breath-testing device to determine whether the device's results are reliable.{...}

It would appear we have made some progress in the fight for the civil rights of those accused of drunk driving, no?  The Constitution provides that you have the right to confront your accuser in open court, so this development is good, right?  Even if it's a machine, you should have the right to confront it in court---in this case, by examining its code and checking that everything is kosher, and it produced the correct result---and the Minnesota Supreme Court said, yes, you do have that right.  Everything is good here, right?  The Constitution is being upheld, and everything should be coming up roses, right?   

Well, that's where you'd be wrong. 

{...}But there's a problem: Prosecutors can't turn over the code because they don't have it.

The Kentucky company that makes the Intoxilyzer says the code is a trade secret and has refused to release it, thus complicating DWI prosecutions.{...}

So, the prosecutors can't hand over what they don't have, and what CMI, the company in question, won't give them because they believe they'll lose money if their "trade secret" is released in open court. 

You're undoubtedly wondering if any of this is relevant to the situation of keeping drunk drivers off the roads.  It is.  It's hugely relevant. 

{...}The Intoxilyzer 5000EN is the standard device used by Minnesota police to determine if a driver is impaired. The state bought 260 of the machines from the manufacturer, CMI of Kentucky, in 1997, and state law presumes the devices' results to be reliable.

The device is used with nearly eight of every 10 suspected drunken drivers who are tested in Minnesota.

But defense attorneys have argued that if they can't examine the source code, the computer program that runs the machine, they have no way to tell if the Intoxilyzer is reliable. District judges across Minnesota have handled defense requests for the source code with a patchwork of rulings: Some say a defendant has a right to examine it; others say it isn't relevant.

The Supreme Court's ruling came in two driving-while-impaired cases that Backstrom's {Ed. The Dakota county prosecutor.  One of seven counties that make up the Twin Cities metro area.} office prosecuted. In each, district judges ordered that the source code be turned over to the defendants, but when Backstrom appealed to the Minnesota Court of Appeals, the rulings were overturned.

The appeals court said the defendants hadn't shown why getting the source code was relevant to their guilt or innocence.

But the Supreme Court said that at least one of those defendants showed that the code was relevant. The court noted in its 18-page ruling a list of evidence that defense attorneys may now use as a blueprint to request the source code.

Police had stopped the defendant, Timothy Arlen Brunner, 38, of Farmington, in July 2007 and the Intoxilyzer showed his blood-alcohol content was 0.18. Minnesota law presumes that a driver with a concentration greater than 0.08 is impaired.

Patrin, his attorney, asked a district judge to order prosecutors to turn over the source code. He accompanied his request with a memorandum and nine exhibits. Among them: a computer science professor's testimony that defects had been found in the code used in voting machines, as well as a report saying problems had been found in the code used in the breath-testing machine used by police in New Jersey.

The Supreme Court said Brunner's submissions "show that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to Brunner's guilt or innocence."{...}

According to TechDirt, breathalyzers are poorly coded and they send you to this link, wherein the code on the breathalyzers used in New Jersey were examined and found to have several, serious, faults, the most damning of which was that there were almost twenty-thousand potential errors in the code. That's disturbing, particularly when you remember that the reason police departments started using breathalyzers in the first place was that they would provide verifiable, objective blood alcohol content results, and would allow courts not to simply have to rely upon some officer's judgment that a driver was impaired.  Never mind that they found 19,400 potential errors---one significant error in the code could convict a person for something they didn't do, or submit them to greater penalties than they actually deserved.

Now, most people would argue that this is no big deal.  That drunk driving is such a great threat to the common good that it's okay for the state to stack the deck in their favor.  Being tough on crime is a good thing, right?  Well, that depends.  Usually I would agree these people.  But I've lived through having the deck stacked against us, and I can tell you with all honesty, that just you wait until it happens to you.  Because it so easily could.  Have one glass of wine on an empty stomach and drive home, and you'll see what I'm talking about.  I'm not some big ACLU advocate, but, honestly, the way the state works on this just isn't fair to the individual.  Forget Mumia Whateverthehellhislastnameis.  I would argue that DWI laws are more dangerous to our individual liberties and the erosion there of, than how cops are forced to treat homicide suspects simply because these offenses happen every damn day and are generally overlooked by a public who is sympathetic to the notion that no one should ever be killed by a drunk driver, and who assumes that they'll never be arrested for such a charge. Well, think again. If the BAC levels keep going down, you won't be able to have so much as an eye-dropper's worth of alcohol in your body without being charged for impaired driving.  And when it becomes apparent that they're not making as much money on the fees associated with DWI's because more people are beating them, well, then it would be logical for the state to change the definition of impaired driving to suit their needs.  (And do keep in mind, DWI's do fund a good deal of the police's capabilities.  They need the revenue these produce.) The state holds the power, and we've given it to them when it comes to DWIs.  The individual does not have the power in this circumstance.  They have no power.  And when your Constitutionally granted rights---including the right to confront your accusers in court---are ignored in favor of public safety, how is that not, by strict definition, fascism?  Our legal system is built on the notion that the accused is innocent until proven guilty.  How does it make you feel, as an American, when you realize that this is not actually put into practice when it comes to a certain class of alleged criminal?   No matter how you feel about drunk driving, you should want people to have their rights and for the state to not act like fascists in support of public safety.

The PiPress article doesn't mention the main reason Brunner would have to argue against what the breathalyzer claimed: all DWI penalties are not created equal.  You have what the State of Minnesota considers to be "aggravating factors" or, as they describe them: 

(1) a qualified prior impaired driving incident within the ten years immediately preceding the current offense;

(2) having an alcohol concentration of 0.20 or more as measured at the time, or within two hours of the time, of the offense; or

(3) having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the offender.

DWI's are like any other crime: they count how many times you've committed said crime, and with what level of egregiousness.  There is no such thing as a clean slate.  When these aggravating factors are added in to the mandatory sentencing guidelines, the fines become larger, the amount of time spent in jail becomes longer, and the amount of supervision becomes greater. I can only assume that Brunner has at least one DWI on his record in the past ten years, and since you can't change the past, or say, hey, Judge, that didn't count, through his attorneys, he challenged the one thing he could: the BAC reading.  It may not seem a logical thing to challenge in such a case, but when they don't really give you the ability to challenge anything else, this was the only avenue open. 

Don't believe me?  Go to court one day, and sit through a DWI trial. (You know, if one occurs, because most people are scared silly and enter in a plea.) Then go the next day and sit through another one.  And the day after that, and the day after that.  Any rational person would be forced to come to the correct conclusion: no one ever gets off because there isn't enough evidence to convict them.  (And if someone does manage to get off, it's because of a technicality.) There is no presumption of innocence in a DWI case, and the state has the deck stacked in their favor.  The court will always take the cop's side, and if the cop says you were drunk, the court believes them, but they generally don't need to take the cop's word for it: they have breathalyzers, and blood and urine tests, which you submitted to because they threatened you with the suspension of your driving license for a year if you didn't cooperate. They can, in a completely legal fashion, compel you to violate your Fifth Amendment right to not incriminate yourself by threatening administrative penalties---the loss of your driver's license for a year---simply for refusing to submit to a breathalyzer or a blood or urine test.  And here's the kicker: say you do manage to beat down the DWI, the court will still punish you by upholding the year-long suspension of your driver's license because you refused to give the state the rope by which they would hang you.  And they get away with it.  Every.  Single.  Time.

According to the article, there is a separate, unrelated, hearing going down later on this month in Federal Court which may, ultimately, force CMI to reveal its code.  Who knows how the federal court is going to rule.

So, what say you, my devoted Cake Eater readers?  What's more important here?  The Constitutionally protected right of a defendant to confront his accuser in court---even if said accuser is a machine?  Or the rights of a company to protect its "trade secrets"---particularly when said trade secrets go hand-in-glove with the supposedly greater issue of "public safety?"