MIAMI - Timothy Muldowny's lawyers decided on an unconventional approach to fight his drunken driving case: They sought computer programming information for the Intoxilyzer alcohol breath analysis machine to see whether his test was accurate.The family court sent my ex-wife and me to a court psychologist who showed us inkblots, asked us what we saw, punched our answers into a computer, and then sent a report with computer-generated personality profiles to the court for use in child custody decisions.
Their strategy paid off.
The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A county judge tossed out Muldowny's alcohol breath test — a crucial piece of evidence in a DUI case — and the ruling was upheld by an appeals court in 2004.
Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say.
"Any piece of equipment that is used to test something in the criminal justice system, the defense attorney has the ability to know how the thing works and subject its fundamental capabilities to review," said Flem Whited III, a Daytona Beach attorney with expertise on DUI defense.
Needless to say, the inkblot company refuses to release the source code. I do think that if the court is going to use output from such silly programs, then the source should be made available. It is fundamental that a man in court should have the right to scrutinize the evidence against him.
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