2008-02-18 Source Code Dispute Heats Up (Again) - Florida Attorney Files Motion in Limine

Venice, Florida attorney Robert Harrison is leading the charge against the breath alcohol measuring devices known as "Intoxilyzers." There are two models, the Intoxilzyer 5000 and the Intoxilyzer 8000. Harrison is seeking production of the source code for both appliances; the manufacturer has thus far refused to disclose the code.

Harrison filed a motion in limine requesting relief which includes a subpoena duces tecum for the source code (as well as other unspecified relief) on the basis that "without the Defendant having an opportunity to review and inspect the software source code, would violate the Defendant’s right to due process and right to confrontation..."

Harrison (imo correctly) characterizes the challenged devices as "mystical machines" if not opportunity to examine source code is provided. An important point here is that the printout of the results is the only evidence that is used to accuse, try and convict a driver subject to the test.

Here now, the litany of reliability issues:

Volumetrics Software Flaw

The"Intoxilyzer 8000, as distributed for use in the State of Florida, contained a software flaw that on numerous occasions reported a volume of less than 1.1 liters when there was not a warning flag of “volume not met”, thus rending the reliability of the reported volume unknown." Harrison notes, quite properly (imo) that "[I]f the reliability of the reported volume of a breath sample cannot be ensured, then the reliability of any corresponding breath alcohol level cannot be ensured. "

Multiple, Uncalibrated Software Versions

Harrison argues that there are various versions of the firmware code used to run the Intoxilyzer 8000, that these versions have not been recalibrate or certified to the state, and that it therefore is unknown whether these code modifications or alterations affect the analytical portion of the code, and therefore the reliability of the output.

"According to the manufacturer of the Intoxilyzer 8000, following a software update that modifies the analytical portion of the software, the machine must be recalibrated. The software contained in the Intoxilyzer 8000 used in this case was modified without having the machine recalibrated. Without the Source Code, the Defendant cannot determine whether or not the software update modified the analytical portion of the software, thus requiring the machine to be recalibrated.

Which Code, Which Version, Which Intoxilyzer?

Harrison raises another good point by implication. Even if the source code is provided, how can it be established that the now-modified source code (or any other code, for that matter) is *the* code that was intended to be used by the device? Without some integrity mechanism applied, we are left at best with corroborative (and inherently unreliable) witness testimony or, at worst, a guess.

"The Source Code is material to the Defendant’s case, for with this information the Defendant can determine whether the Intoxilyzer actually used in this case was using a software program approved by 11D-8.003 or a modified version of this program, if a modified version was used, what extent the modification would have on the reliability and operation of the Intoxilyzer, and how the software effects the reliability and operation of the Intoxilyzer.31. Without the production of the Source Code, the reliability of the Intoxilyzer 8000 is unknown."

Link to the pleading here: http://www.harrisonlawoffice.com/sourcecode/pleadings/fabian/Motion%20in%20Limine.pdf