I got two speeding tickets dismissed against me using this argument in court, on in Minnesota, one in California. The officers could not produce a calibration certificate at trial. Case dismissed.
------ Original Message ------
Received: Wed, 29 Dec 2010 09:16:26 PM EST
Subject: Re: [johnmacsgroup] Motorist 32 times over alcohol limit
More to the point, and of use to our legal friends, always ask for the source
code. The source code will have bugs. Calibration records are also great, as
noted by Randall.
This applies to any law enforcement device, like a radar speed gun, laser
speed gun, breath-a-lyzer, etc.
The manufacturer will not want the source code in the public record. The
prosecution will not want you having access to the source code, as you will be
able to prove there are code bugs. There is no perfect code in the world.
There will be logic bugs, data bugs, overflow bugs, exception bugs - the list
is nigh endless.
The prosecution will want to plead. The judge in a traffic court will likely
simply play tin god and deny your request, and I doubt there is an appeal
if it's a serious charge, insist on the source code. If denied, request a
mistrial. If granted, get a CISSP, or other certified security or code expert,
to find some errors. You can induce plenty of doubt, as code is riddled with
If denied the mistrial, go for a win on appeal.
Please note, IANAL. But, I have been an expert witness where a tin god state
judge thought he could ignore expert testimony that "evidence" was bogus,
didn't follow any of the rules of evidence, or chain of evidence. We won
handily on appeal.
This is not legal advice, I am simply relating some events and ideas - for
those of you in barbaric states like Texas, that brook no competition with
your lawyers' union.
On Dec 24, 2010, at 11:05 PM, A Grudko wrote:
> (No, it wasn't me... jeepers I am sooooooooo full still of last
> night's Xmas supper!)
> East London - A drunk motorist was arrested near Queenstown in the
> Eastern Cape after allegedly being found to be 32 times over the
> alcohol limit, the department of transport said on Thursday.
Oddly enough, when I read this I am reminded of the fact that the
Washington DC PD has apparently forgotten to calibrate their BA
testing machines for the last TEN YEARS. (MFGR recommends
recalibration every three months).
"DC: Bogus Breathalyzer Results May Go Back a Decade
Whistleblower contends Washington, DC breath testing machines have
not been accuracy checked since 2000.
Robert J. HildumMotorists in Washington, DC may have been falsely
accused of driving under the influence of alcohol (DUI) for more than
a decade as a result of faulty "Intoxilyzer" breath testing
equipment. Whistleblower Ilmar Paegle, a veteran police officer now
working as a contract employee for the District Department of
Transportation, argued in a memorandum to the city's attorney general
that the breath testing machines have not been properly calibrated
since 2000, as first reported by WTTG-TV.
To date, the District has only admitted to bogus breathalyzer results
taken between September 2008 and February 4, 2010. Of 1100 cases
prosecuted in that period, 300 were convicted based on evidence
provided by faulty machines.
"As a result of the miscalibration the instruments apparently
produced results that were outside the acceptable margin of error to
be considered accurate," Deputy DC Attorney General Robert J. Hildum
wrote in a June 4 letter to DC trial lawyers. "OAG [office of the
attorney general] is in the process of notifying the defendants and
their counsel in those cases."
Paegle's discovery that the breathalyzers producing bogus results
forced the Metropolitan Police Department to stop using the machines
on February 4 and switch to Intoximeters. Hildum blamed the problems
on Officer Kelvin King who began replacing motors in the
breathalyzers in September 2008 as part of routine maintenance. Under
DC law, the machines must be tested for accuracy every three months,
but the District failed to codify procedures or standards for this
testing. Paegle was concerned that the District has never performed
these accuracy tests, raising concern among legal experts.
"You too could have been pulled over on the basis of a minor traffic
violation and put through a series of difficult and humiliating field
sobriety tests," DC-based defense attorney Jamison Koehler wrote on
his law firm's blog. "After blowing into the breath test machine, you
could have spent the night in a jail cell with other people who were
drunk, angry, disorderly, mentally ill or whose sweating, panting and
retching signaled to you that they going through drug withdrawal. You
could have had to shell out thousands of dollars to hire a lawyer and
missed work on so many occasions to attend court hearings that your
employer warned you might be fired.... On the basis of the faulty
breath test results, you too have been convicted of driving while
intoxicated even with blood alcohol levels far below the legal limit."
A copy of the OAG memo is available in a 220k PDF at the source link
Source: PDF File Letter to DC Superior Court Trial Lawyers Assoc. (DC
Office of the Attorney General, 6/4/2010)"
California: Cop Accused of Faking DUI Reports
Sacramento County, California district attorney dismisses 79 drunk
driving cases because arresting officer falsified evidence.
Sacramento Police Officer Brandon MullockBeing arrested for driving
under the influence of alcohol (DUI) can cost a motorist thousands of
dollars in court fines, insurance costs and attorneys' fees. At least
79 accused drivers were notified last Friday that the police officer
that charged them with drunk driving had likely falsified at least
one piece of evidence. Sacramento County District Attorney Jan Scully
threw out the cases after an investigation into the conduct of
Sacramento Police Officer Brandon Mullock, 24.
Scully opened the inquiry into Mullock's conduct after a deputy
district attorney preparing a DUI case for trial watched a dashcam
arrest video and noticed that the raw footage differed substantially
from Mullock's written account of the incident in a police report.
The case was dropped in June.
"It is fundamental to our system of justice that prosecutors only
proceed on cases where the evidence is trustworthy and was legally
obtained," Scully said in a statement. "The United States Supreme
Court has said that the prosecutor should seek not simply to win a
case, but to see that justice is done. The California Supreme Court
has said that public prosecutors are charged with the important and
solemn duty to ensure that justice and fairness remain the touchstone
of our criminal justice system."
According to Scully's office, most of the defendants were convicted
in a court of law despite Mullock's legally unsound decision to
detain the motorists, despite his misuse of preliminary alcohol
screening and despite wild inaccuracies in his field interviews.
"Drunk driving is one if those crimes which is highly susceptible to
falsifying evidence," California DUI attorney Lawrence Taylor
explained on DUI blog. "This is because the offense is highly
dependent on the cop's own observations and opinion. Typically,
proving 'driving under the influence of alcohol' depends upon the
officer's testimony of such symptoms as weaving on the highway, odor
of alcohol on the breath, flushed face, slurred speech, bloodshot
eyes, poor balance, staggering when walking, etc. Usually, there are
no other witnesses to contradict these 'observations'; certainly, no
one will believe the accused... The motive? Fulfilling quotas,
overtime pay for testifying in court, promotions for high numbers of
arrests, gaining awards in personnel files from MADD, etc."
The district attorney's office has provided each convicted motorist
with documentation they can provide to insurance companies and
employers to remedy some of the damage done.