…at least so says a Court of Appeals in Florida. The story is here. Lawyers in Florida have been fighting for years to force the manufacturer of the Intoxilyzer 8000, the same machine that is used in all Kansas DUI breath test cases, to turn over the source code for the machine. The source code is the computer code that runs the machine and produces the breath test result. The manufacturer, CMI, Inc., of Owensboro, Kentucky, says that the source code is a trade secret and they refuse to reveal it. So, judges in Florida have been throwing out the breath test results. This ruling from Florida’s Court of Appeals backs those judges up.
The truth of the matter is that CMI, Inc., does not want to turn over the source code for the machine because then defense experts could and would analyze it and there will inevitably be errors found in the code. Of course, those errors could be leading to faulty breath tests and innocent people losing their driver’s licenses and going to jail. The source code is not a trade secret, as all of the breath test machines work more or less the same. But, even if there was something secret and magical about the software that runs the machine, should people be getting convicted by a machine which runs by secret? The accused have the right confront and cross examine their accuser as guaranteed by the Sixth Amendment to the United States Constitution. In a Kansas DUI case, the machine is the primary accuser and the breath test result is the accusation. What about the right to confront that accuser? The prosecution and manufacturer of the machine refuse to allow all of the facts to come to light because they know that when the curtain is pulled back, the wizard will be revealed to be deeply flawed.
The source code issue has not been pursued by Kansas DUI attorneys yet to my knowledge. It likely will be. What happens on this issue in Florida and the other states where it is being litigated will be important to how and whether Kansas DUI law will resolve this problem. CMI says it will never give up the source code regardless of what the Florida courts say, so those breath tests are getting thrown out for good reason. Until someone litigates this issue in Kansas, the wizard will stay behind the curtain in Kansas DUI cases.