There is a reasonable suspicion everyone ever found guilty by the use of a DUI testing machine (the Drager Alcotest 7110) has a cause of action against Drager and the State of Alabama. Also, the State of Alabama has a terrific case against Drager for selling the State these crappy machines. Here is a picture of the Drager 7110:
Photo Credit: Jay Hare, Dothan Eagle
To my knowledge, no DUI lawyer in Alabama had gotten ahold of the Drager source code for the 7110. Drager always argues in court their source code is proprietary and revealing the source code would damage their business. Quoting Bruce Schneier, “They were right about the second part, of course, because it turned out that the code was terrible.”
These machines are simply not reliable. DUI lawyers and experts, criminal lawyers and even myself have known this for years. What we did not know was that the software running the Drager was so flawed.
In New Jersey, where some enterprising lawyers got ahold of the source code through criminal discovery and had it tested, 24 major defects were found in the code.
From the New Jersey testing lab’s report:
It is clear that the Alcotest software would not pass development standards and testing for the U.S. Government, the U.S. Military, the Federal Aviation Administration or the Federal Drug Administration, as well as commercial standards used in devices for public safety.
Catastrophic Error Detection Is Disabled – The code has disabled capabilities in the processor that detect catastrophic problems when instructions are executed with regard to invalid and/or illegal data values or with corrupted instructions. Turning off these safeguards means as these conditions are encountered, the machine produces unpredictable results.
This thing looks like a train wreck to me. Another Brown v. State, 565 So.2d 585 (Ala.1990) may appear here. Brown was a class action filed on behalf of anyone in the State of Alabama who had been convicted of traffic offenses based upon improperly verified Uniform Traffic Ticket and Complaints, (“UTTCs”). Back in the day, when you got a traffic ticket (a UTTC), it was common practice for the police officer giving the ticket to not verify (or swear to the truth of the ticket) before a judicial officer. The problem with this was a lack of verification meant the judicial courts did not have subject matter jurisdiction over the criminal case instigated by the ticket and therefore the ticket was void.
A bad Drager source code could also mean that all Alabama DUI convictions based on this horrible machine could be void.
Meanwhile, a good DUI lawyer can use this flaw to attack the machine’s findings in court. Round here, Manish Patel and Chris Sledge are two of the best.
I don’t like having drunks on the highway, I have represented too many victims of such drivers. But fair is fair. Alabama needs to go to blood testing or some smart guy needs to invent a reliable machine that will accurately test for DUI in Alabama. Again read the New Jersey lab report as they point out that the Drager might also let a drunk driver go free:
An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.
If the Alabama State Troopers are using the Drager as part of their new vans they take to roadblocks, this thing is so inaccurate it might let a drunk beat the test and go out and kill somebody. Legislature take note: Blood testing.
Now why the heck would they do that? From the New York Times, this really chafes me raw: