Tuesday, November 15, 2005

DWI cases blowing in the wind; Following some Florida cases, Omaha attorneys are filing discovery motions against the City and County prosecutors to force disclosure of internal software operations of breath analysis devices Omaha.com For more than 25 years, police and prosecutors have relied on breath-test devices to determine whether a driver is drunk. But now, local defense attorneys are following a Florida trend and challenging the machines. They're asking judges to order prosecutors to reveal how the machines operate, including the computer code that makes them tick. This month County Court Judges in Sarasota Florida ordered disclosure of source codes for the Intoxilyzer 5000, order (pdf). If they don't get the information, the attorneys say, they will ask judges to throw out the breath tests - an action that would doom hundreds of drunken-driving prosecutions. The question is: Are the attorneys' requests simply hot air, a weightless attempt to get clients off on a technicality? Or, as defense attorneys ask, are the breath-test devices "mystery machines" that are unworthy of the weight they have been given in court? Both sides have squared off in a courthouse battle that has DWI attorneys salivating, prosecutors scrambling and judges pondering how they will rule. Following the lead of Omaha attorney Steve Lefler, several attorneys have asked, or will ask, judges to order prosecutors to turn over the breath-test devices' source code - a computer program that basically tells the machine how to operate. So far, two judges have ordered prosecutors to do so - or explain why they can't. But prosecutors have said they won't turn it over, in part because they don't have it. The source code, they say, is proprietary to the machine's maker. The issue is expected to come to a head Thursday, when Lefler will ask Douglas County Judge Stephen Swartz to throw out breath-test results in two cases. But both sides believe the issue will go to a high court because of the high stakes: Nearly 14,000 Nebraska drivers - about 5,000 in Douglas County alone - were arrested for driving while intoxicated in 2004. The vast majority were arrested after a breath test. "This machine has been treated as if it's the machine behind the Wizard of Oz's curtains," Lefler said. "We ought to be able to ensure that it's accurate." But Omaha City Prosecutor Marty Conboy said the state already has ensured the machines' accuracy. Under state law, the Nebraska Health and Human Services System is charged with licensing and regulating the machines. HHS holds public hearings on the devices and routinely tests them using a solution with a known alcoholic content. Any machine that doesn't measure the alcohol within a narrow range must be repaired. Now, Conboy said, Lefler and other attorneys want judges to play the role of scientists - and determine the reliability of a machine that is thoroughly tested and nationally accepted. Not only is that imprudent, Conboy said, it's impractical. Conboy said he would have to spend thousands of taxpayer dollars to bring in an expert to vouch for the machines. "You get a judge to make this kind of a decision, it's like lighting gasoline on fire," he said. The gasoline - or, perhaps, the alcohol - is ablaze in a few Florida counties. In one, judges have thrown out more than 700 cases because prosecutors didn't turn over the source code. An appellate court in another county held that: "An instrument or machine that, if believed, establishes the guilt of an accused subjecting them to fines, loss of driving privileges and loss of freedom should be made available to the defense for open inspection." See Florida v. Bjorklund, etal, Sarasota County Criminal Division 11-2-05. Lefler said he brought the issue to Nebraska after reading about those challenges - and contacting Florida attorneys. "I've kicked myself in the butt several times," said Lefler, who has represented dozens of drunken drivers in his 28 years as a lawyer. "You just wonder, 'Why didn't I think of this before?'" Others are just glad Lefler read about it. Attorneys James Schaefer and Glenn Shapiro said they are in line to file "Lefler motions" on 30 cases. "If those machines have real problems and (the maker) has been hiding it from us," Shapiro said, "then it's our duty to blow the whistle on this." Conboy said prosecutors have given defense attorneys owners' manuals and repair records for the machines. He dismissed efforts to obtain the source codes as "lawyering by blog." Many other Florida judges, he noted, have refused to compel prosecutors to disclose the source codes. In his career, Conboy said he has overseen the prosecution of more than 100,000 drunken drivers using breath tests. The tests, he said, were buttressed by an officer's observation of the motorist's erratic driving. "I have confidence that in every single one of those cases, the person was guilty," he said. Lefler doesn't have similar confidence - especially, he said, if he can't see the machine's makeup. The machines employ a decades-old process called infrared spectrophotometry to measure someone's breath for alcoholic content. Lefler compared the devices to a personal computer - one that he can count on to have glitches. But Conboy said they are as simple as a bathroom scale. Just how will judges weigh in on the issue? Whatever they decide, Lefler said, he would like the county's 12 judges to rule uniformly. "How do you say to someone, 'You had the bad luck of getting a judge who feels that the source code doesn't have to be turned over,'" he said. "Meanwhile, his buddy is acquitted because another judge ruled that the state cannot use the breath-test results." A consensus appears far from likely. After two judges ordered prosecutors to turn over the source code - or explain why they couldn't - a third, Judge Lyn White, peppered Lefler with questions about why she should. She has yet to rule. "You can always find a judge somewhere who will make a radical ruling," Conboy said. "But it isn't the way you review science."

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