It’s getting a little scary out there folks- come on wake up! I saw a blurb of an article that a DUI attorney in Minnesota successfully petitioned the court for the source code of the breathalyzer machine on behalf of his client. This is a challenging discovery request which, to my knowledge (at the time of this writing) has only been successfully advanced in Florida and now Minnesota. The importance of the source code in Maryland drunk driving breath cases is that the code is the brains of the breath machine that yields a BAC (breath alcohol content) number. The breath machine is essentially a computer with a place to provide a breath sample. Therefore, in fairness to a defendant, one might actually want to know how the computer determines a number in order to know if he is being fairly accused of DUI. Remember, having a drink and driving a car is not enough to be convicted of DUI (well, it’s not supposed to be enough).
So I’m reading the short article, and thinking that’s progressive and it’s good! Then I began reading the comments underneath the article. Most of the comments make sense, they say that the machine is built around a very old computer chip which had run the Radio Shack computer TTRS-80 from twenty plus years ago; the comments say that the code is probably relevant to see how the machine is programmed in order to determine if it is fairly and accurately yielding a number, etc.
However, then I read a thread of comments from that article and a linked article wherein people are missing the mark. They suggest that the machine programming is of no consequence, that the defendant is simply using the discovery as a stall tactic in his case, that if the machine says he’s an .08, then he must be an .08. One comment that I had to reply to suggested that “if the defendant took the test, it’s because he knew he was guilty!” I was compelled to respond to that comment to help the writer understand that the police coerce suspects into taking the test by threatening them with the loss of their driver’s license and with jail! I also explained that in every state, if you elect not to take the test, that you will be summarily punished with enhanced penalties against your driving privilege. Therefore, in the overwhelming number of cases, a breath sample is provided, and in the few cases where one is not, it is generally presumed by the court/jury that the suspect was in fact under the influence.
The downright scary concept was the number of comments suggesting that the magic box is correct and that’s that! That the box should not be questioned, that it’s a stall tactic to request the code, that if a suspect had a drink then he’s guilty anyway, that the defense attorney is merely scrambling to defend the client. This type of thinking is lazy and detrimental to our system of justice, and I pray that it does not represent main stream thinking on this subject. That we should not bother to look at the man behind the black curtain. DUI is a crime, like any other crime it has serious and long lasting ramifications. If a suspect is guilty of the crime, then he’s guilty of the crime. But for crying out loud, is it too much to ask that the government, its witnesses and its machines be held to the same scrutiny that we would hold any other criminal evidence?
Why is there an underlying current that if a defendant is charged with the crime of DUI/DWI that he must be guilty? Police have a strong motivation to arrest as many drinking and driving suspects as possible. A suspect can blow a .02 and still be arrested and charged, I know because my client has such a case next week in Baltimore City. If the police have such strong motivation (quotas, overtime pay to appear in court, advancement in the ranks, bonus money as happened in Florida [until many cases were subsequently thrown out] ), we really need to be more skeptical and critical thinkers when it comes to evidence offered by the government in DUI cases, just like we would in any other type of criminal matter.
Bruce Robinson DUI Defense attorney
Baltimore City, Baltimore County and surrounding counties in Maryland.