On February 16, 2009, the National Safety Council’s Committee on Alcohol and Other Drugs (NSC-COAD) adopted a position statement on source code of breath-alcohol analyzers. This position statement essentially indicates that source code is not relevant to the defense in a drunk driving case involving a breath test. Specifically, their position is:
It is the position of the National Safety Council Committee on Alcohol and Other Drugs that access to the Source Code of the software of an evidential breath-alcohol analyzer is not pertinent, required, or useful for examination or evaluation of the analyzer’s accuracy, scientific reliability, forensic validity, or other relevant characteristics, or of the trustworthiness and reliability of analysis results produced by the analyzer. These matters can be and have been fully assessed and examined by multiple other well established and recognized methods and procedures in common use worldwide; and many other adequate and appropriate means exist to challenge evidential breath-alcohol analysis results.
This “Position Statement” was published in the Journal of Analytical Toxicology with the following editorial statement:
The Journal of Analytical Toxicology received the following Position Statement tilted “Approved Position Statement on Source Code” from the National Safety Council’s Committee on Alcohol and Other Drugs.
One may assume that this position statement will now be cited by prosecutors as part of their attempt to block access to the source code.
This all reminds me of a famous quote: The lady doth protest too much, methinks. Yes, it does seem that CMI (the manufacturer of the Intoxilyzer) and other breath test manufacturers are making too much of releasing source code. Perhaps they know there are problems with their machines. If not, then by contrast why does NPAS, the manufacturer of Michigan’s DataMaster, state this on their web site:
National Patent Analytical Systems, Inc. supports our customers to ensure the breath test evidence is credible, admissible in court and effective to gain convictions. To that end, it is NPAS policy to release the computer source code that drives our instruments, for a nominal fee and with an appropriate agreement. In the unlikely event that an expert finds a problem with our computer code, our engineers will fix the problem so the evidence generated by your DMT is not compromised.
As one of Michigan’s forensic scientists likes to say “science, not secrets.” It seems that the ostensibly scientific National Safety Council’s Committee on Alcohol and Other Drugs would rather it be the other way around.
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baronedefensefirm – who has written 204 posts on .
Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.
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