The Relevance of Source Code in Breath Alcohol Testing
Why source code review is relevant to breath alcohol testing.
Prior to purchasing new instruments, jurisdictions should request that the manufacturer obtain independent testing and evaluation of the software. This will document that a reasonable effort was made to independently ensure its integrity.
Breath test device manufacturers must also be made aware that their software, often proprietary, may be requested by the defense under discovery or court order. Protective orders can be employed to protect the manufacturer’s legitimate interests. — Rod Gullberg1
Source code is the human-readable programming language of written instructions for a computer to execute. BTW - I spoke to former Bureau of Criminal Apprehension toxicology supervisor Glenn Hardin about this issue a few weeks ago.
Since breath testing is the most common forensic test performed, it’s no surprise that the defense would request to view the source code to see if it is appropriate for the test.
In Minnesota, source code hearings were held regarding the previous breath alcohol analyzer, the Intoxylizer 5000, circa 2010.
Subjects were being charged with refusals despite their best attempts to provide a breath into the device. There was a problem with the programming of the device where if the subject blew too hard during the first few seconds of the test, the device wouldn’t register the total volume properly and the test would often end with a refusal charge.
It was discovered that the State crime lab had a programmatic fix for the issue, but failed to implement it due to not wanting to draw attention to the issue.
Other states had sourced code hearings as well. The states of New Jersey and Washington have both had source code challenges raised.
In Washington State, for example, Sergeant Rod Gullberg, “testified that he believed there were software programming errors which resulted in the high rate of recorded invalid sample error code messages in the first three amended versions of the software.”