The open source imperative hits breathalyzers

What happens when law enforcement relies on proprietary technology? A case in Miami is showing governments another benefit of open source.

When Timothy Muldowny was busted for drunk driving, his lawyers hit on an interesting defense strategy: Demand to see the source code of the breathalyzer device that he was tested on. AP reports that the strategy paid off - and for more people than just Muldowny.

CMI Inc. - maker  of the Intoxilyzer, the most popular breathalyzer device in the US - refused to divulge their source code. The trial judge threw out the evidence. An appeals court upheld.

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.

 In Florida, defendants are entitled to "full information concerning the test taken." Defense lawyers say that means their expert witnesses need to be able to comb through the product's source code. The Flordia 5th District Court of Appeals agreed.

"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," the Court wrote.

So governments are left with two options: Change the law, specifically removing source code from the right of discovery, an option which might not withstand Supreme Court scrutiny, or switch to providers willing to create an open source breathalyzer.

Granted, such a system may not exist today, but it's a market opportunity, isn't it? A definitive ruling that source code is discoverable could usher in a substantial movement in government acquisition from proprietary to open source.