Breathalyzer
Makers Won't Tell How They Work
Information
courtesy of Lawrence Taylor - DUIblog
Let's
assume that you are being prosecuted and the key evidence against
you comes from a machine. The prosecutor wants to use the test results
from that machine in trial to prove your guilt. Your attorney asks
for information about how the machine works, including the critical
computer code, to determine if it is accurate and reliable. The
prosecutor refuses, saying the information is a protected trade
secret. Your attorney says you have a constitutionally protected
right to a fair trial -- including the right to inspect the evidence
against you, the right to confront your "accuser".
Should
your attorney be entitled to the information? Consider a recent
article in the Orlando Sentinel:
SANFORD
-- In the past five months, Seminole County judges have thrown
out hundreds of breath-alcohol tests that show drivers were legally
drunk.
The
reason: The state won't disclose how the test machines work --
not because it doesn't want to, but because it doesn't have the
information, and the manufacturer won't give it up....
All
four Seminole County criminal judges now use the same standard:
If a DUI defendant asks for a key piece of information about how
the machine works -- its software source code -- and the state
can't provide it, the breath test is rejected....
Seminole
judges are all following the lead of Seminole County Judge Donald
Marblestone, who in January ruled, though the information may
be a trade secret and controlled by a private contractor, defendants
are entitled to it.
"Florida
cannot contract away the statutory rights of its citizens,"
the judge wrote.
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