Category Archives: DUI DRUNK UNDER INFLENCE

Researchers state a breathalyzer has flaws, casting doubt on countless DUI convictions

The source code behind a police breathalyzer widely used in multiple states — and millions of drunk driving arrests — is under the spotlight.

It’s a recent case of technology and the real world colliding — one that revolves around source code, calibration of equipment, two researchers and legal maneuvering, state law enforcement agencies, and Draeger, the breathalyzer’s manufacturer.

This most recent skirmish began a decade ago when Washington state police sought to replace its aging fleet of breathalyzers. When the Washington police opened solicitations, the only bidder, Draeger, a German medical technology maker, won the contract to sell its flagship device, the Alcotest 9510, across Washington state.

But defense attorneys have long believed the breathalyzer is faulty.

Jason Lantz, a Washington-based defense lawyer, enlisted a software engineer and a security researcher to examine its source code. The two experts outlined in a preliminary report that they found flaws capable of producing incorrect breath test results. The defense hailed the results as a breakthrough, believing the findings could cast doubt on countless drunk-driving prosecutions.

The two distributed their early findings to attendees at a conference for defense lawyers, which Draeger said was in violation of a court-signed protective order the experts had agreed to, and the company threatened to sue.

Their research was left unfinished, and a final report was never finished.

Draeger said in a statement the company was protecting its source code and intellectual property, not muzzling research.

“Pursuant to a protective order, Draeger provided the source code to both of the defense experts in Snohomish County,” said Marion Varec, a spokesperson for Draeger. “That source code is highly proprietary and it was important to Draeger that the protective order limit its use to the purposes of the litigation at issue.” Draeger says it believes that one of the experts entrusted to examine the source code was using it in violation of the protective order, so Draeger sent the expert a cease and desist letter. Draeger says it “worked with the expert to resolve the issue.”

Of the law firms we spoke to that were at the conference and received the report, none knew of Draeger’s threat to launch legal action. A person with a copy of the report allowed ZDNet to read it.

The breathalyzer has become a staple piece of equipment in law enforcement, with more than a million Americans arrested each year for driving under the influence of alcohol — an offense known as a DUI. Drunk driving has its own economy: A multi-billion dollar business for lawyers, state governments, and the breathalyzer manufacturers — all of which have a commercial stake at work.

Yet, the case in Washington is only the latest in several legal battles where the breathalyzer has faced scrutiny about the technology used to secure convictions.

TRIAL BY MACHINE

When one Washington state driver accused of drunk-driving in 2015 disputed the reading, his defense counsel petitioned the court to obtain the device’s source code from Draeger.

Lantz, who was leading the legal effort to review the Alcotest 9510 in the state, hired two software engineers, Falcon Momot, a security consultant, and Robert Walker, a software engineer and decade-long Microsoft veteran, who were tasked with examining the code. The code was obtained under a court-signed protective order, putting strict controls on Momot and Walker to protect the source code, though the order permitted the researchers to report their findings, with some limitations. Although the researchers were not given a device, the researchers were given a binary file containing the state’s configuration set by Washington State Patrol.

Although their findings had yet to be verified against one of the breathalyzers, their preliminary report outlined several issues in the code that they said could impact the outcome of an alcohol breath test.

In order to produce a result, the Alcotest 9510 uses two sensors to measure alcohol content in a breath sample: An infrared beam that measures how much light goes through the breath, and a fuel cell that measures the electrical current of the sample. The results should be about the same and within a small margin of error — usually within a thousandth of a decimal point. If the results are too far apart, the test will be rejected.

But the report said that under some conditions the breathalyzer can return an inflated reading — a result that could also push a person over the legal limit

One attorney, who read the report, said they believed the report showed the breathalyzer “tipped the scales” in favor of prosecutors, and against drivers.

One section in the report raised issue with a lack of adjustment of a person’s breath temperature.

Breath temperature can fluctuate throughout the day in an individual, but, according to the report, can also wildly change the results of an alcohol breath test. Without correction, a single digit over a normal breath temperature of 34 degrees centigrade can inflate the results by six percent — enough to push a person over the limit.

The quadratic formula set by the Washington State Patrol should correct the breath temperature to prevent false results. The quadratic formula corrects warmer breath downward, said the report, but the code doesn’t explain how the corrections are made. The corrections “may be insufficient” if the formula is faulty, the report added.

Issues with the code notwithstanding, Washington elected not to install a component to measure breath temperature, according to testimony in a 2015 hearing, and later confirmed by Draeger.

Kyle Moore, a spokesperson for Washington State Patrol said the police department “tested and approved the instrument that best fit our business needs,” and believes the device can produce accurate results without the need for the breath temperature sensor.

The code is also meant to check to ensure the device is operating within a certain temperature range set by Draeger, because the device can produce incorrect results if it’s too hot or too cold.

But the report said a check meant to measure the ambient temperature was disabled in the state configuration.

“The unit could record a result even when outside of its operational requirements,” said the report. If the breathalyzer was too warm, the printed-out results would give no indication the test may be invalid, the report said.

Draeger disputed this finding. A spokesperson said the Washington devices check their temperature, the check is enabled, and that the devices will not produce a reading while the device is outside its operational temperature range.

When asked, a Washington State Patrol spokesperson would not say if the breathalyzer was configured to allow breath tests outside its operational temperature range, saying only that the device “has been tested and validated in various ambient temperatures.”

The report also scrutinized the other sensor — the fuel cell — used to measure a person’s alcohol levels. Any fuel cell will degrade over time — more so when the breathalyzer is used often. This decay can alter the accuracy of test results. The code is meant to adjust the results to balance out the fuel cell’s decline, but the report said the correction is flawed. Breathalyzers should be re-calibrated at least every year, but the state’s configuration limits those adjustments only to the first six months, the report added.

“We also note that the calibration age does not account for the use frequency of conditions; a unit that has been used hundreds of times in a day would have the same correction as one used only once or twice in a number of months,” the report said.

Concluding the nine-page report, the researchers say they are “skeptical” that the Alcotest 9510 can & does produce a reliable measurement of breath alcohol.

“Although the apparatus states its output in very absolute terms, we recommend interpreting the results with extreme caution,” the report said.

LEGAL BATTLES

Although Momot and Walker’s code review was limited to devices in Washington, similar concerns roped in other states into protracted legal battles, forcing prosecutors to defend not only the breathalyzer but also how it’s configured.

But the line between Draeger’s source code and each state’s configuration is blurry, making it difficult to know who is responsible for incorrect results.

Draeger said in an email that the “calibration and adjustment procedures depend on the instrument, additional equipment and materials, and the persons performing these procedures.” When asked about the guardrails put in place to prevent calibration errors, the company said, “only trained and certified personnel perform these special instrument certification procedures.”

A Draeger Alcotest 9510 device, with a reading in Dutch.

Washington State Patrol said the device produces accurate results, even without certain sensors fitted.

Draeger’s breathalyzer is widely used across the US, including in California, Connecticut, Massachusetts, New Jersey, and New York. It’s often the only breathalyzer used in the states where they were bought.

In both New Jersey and Massachusetts, defense lawyers raised concerns. By acquiring the devices used by the states, lawyers commissioned engineers to analyze the code who say they found flaws that they say could surely produce incorrect results.

But defense teams in both states largely failed to stop their state governments from using the devices, public records reveal.

New Jersey’s top court found in 2008 that a similar Alcotest breathalyzer — said to use the same underlying algorithms as the Alcotest 9510 — was “generally scientifically reliable” and can be used with a few configuration changes. One such change was to adjust the breathalyzer’s results for women over age 60 — who often aren’t able to produce the minimum breath volume of 1.5 liters required for a test. But defense lawyers argued that these changes were never put into place.

The same court ruled five years later that the breathalyzer “remains scientifically reliable, and generates results that are admissible” in court.

In nearby Massachusetts, a scandal that blew up in 2017 involving alleged failings in the breathalyzer threw thousands of prosecutions into disarray, because “all but two of the 392 machines” examined in the state had not been properly calibrated.

A district judge ruled that breath test results from miscalibrated devices for two years prior to September 2014 were “presumptively unreliable,” said Joe Bernard, a defense attorney who led the case against the Alcotest 9510 in Massachusetts.

Bernard, and his colleague Tom Workman, a computer forensic expert who later trained as a lawyer and consulted on the case, obtained the state’s source code and produced a report.

In a phone call, Workman criticized the Draeger breathalyzer, arguing that it can produce widely inflated outcomes. One section of his report claimed the device had a litany of programming errors, including code that — like in Washington — apparently fails to correct for fuel cell fatigue.

But the court rejected the findings and found the source code still produced sound scientific results.

“THROW CAUTION TO THE WIND”

While legal battles were continuing, Washington waited to push ahead with its deployment, but the ruling in New Jersey case in 2008 was seen as a vote of confidence.

Almost a year later, Washington State Patrol’s toxicologist said in an email seen by ZDNet that the police department should “throw caution to the wind” to deploy the device to police officers across the state without commissioning an independent source code evaluation — though she recommended confirming with the chief of police.

When asked whether an independent evaluation was ever commissioned, a Washington State Patrol spokesperson would not comment further and referred back to the legal filings in the case.

A later email in 2015 confirmed that the Washington State Patrol “never commissioned” an independent assessment.

Moses Garcia, a former Washington state prosecutor who now works for a non-profit providing local governments in the state with legal advice, said in an email that the earlier breathalyzer in the New Jersey case had already been deemed admissible, and that the newer Alcotest 9510 uses the “same basic algorithms and formulas” as its predecessor.

The former prosecutor criticized the defense’s discovery effort as “speculation.”

“In adopting and approving the [Alcotest 9510], the Washington breath alcohol program exceeds, by far, the scientific standards accepted in the scientific community for breath test instrument validation,” he said.

Five years after the contract was signed, Washington State Patrol began deploying hundreds of Draeger breathalyzers in 2014 — sparking interest from defense attorneys in the state.

Not long after, defense attorneys in the state sought access to the devices.

Lantz was granted access to the source code used for Momot and Walker’s code review by a local county court. In one of several recent phone calls with ZDNet, he recounted how he set out to see if there were problems with the state’s device.

“We thought we would find something but nothing like this,” he said.

SETTLEMENTS AND SETBACKS

Hundreds of DUI lawyers descended on Las Vegas in mid-2017 for their annual gathering.

At the event, the two researchers shared their findings, which claimed the Alcotest 9510 having a “defective design.”

Word spread quickly. Draeger sent the researchers a cease and desist letter claiming defamation and alleging the two violated a protective order, designed to protect the source code from leaking.

Draeger and the researchers settled before a case was filed in court, avoiding any protracted legal battle. A court case disputing the fine print of the order could have taken years to resolve.

Draeger said it “remains prepared to provide the source code for use in other litigation in Washington, so long as a proper protective order is in place.”

Beyond a tweet by Walker pointing to a settlement statement on his site, there was little to indicate there had been any legal action against the pair.

The statement said that the two experts “never intended to violate the protective order” and denied any wrongdoing. But the two sides “agree” the draft report was based on incomplete data and not finished — and that “no one in possession of the report should rely on it for any purpose.”

We reached out to Walker with questions, but he referred only to the settlement statement on his company’s website, and he refused to comment any further.

Draeger would not say why the settlement did not include a retraction on the report’s findings.

“There has not been an evidentiary hearing in Washington. If and when there is one, Draeger will cooperate fully,” a spokesperson said.

But Lantz outlines a different scenario. The defense attorney said he believes there “really was no technical violation of the protective order,” because the report didn’t disclose any source code.

“I do believe that [Draeger] is trying to interpret the protective order to be something that it’s not,” he said. “If we could go back in time, I would’ve asked that the report was not handed out — just because of the optics of it.”

Lantz said the protective order is vague, but contends it was framed to prevent the researchers from using the source code or their findings for commercial gain — effectively preventing Momot and Walker from using their knowledge to build their own competing devices. He believes the order gives Draeger near complete control over the code and anything that the company deems “protected” information.

That’s when Draeger “began developing a strategy on how to block” the researchers’ report, said Lantz, because the company didn’t want the “pervasive exposure of these flaws.”

“I believe that interest of Draeger’s to protect their bottom line overlaps with the state’s interest to keep juries from hearing this information about the problems,” he said.

Draeger maintained that it is protecting its intellectual property. The company said in response that it “takes very seriously the proprietary nature of its source code,” and “protects proprietary information as a sound business practice,” which can include various types of communications or agreements for any particular issue.

Momot and Walker are not any more involved with the case, but Sam Felton, a Washington-based software engineer, is set to conduct another review of the Alcotest 9510 code. When contacted, Felton would not speak in specifics about his findings to date, citing his own protective order, except that he found things in the code that caused him “to have some grave concerns.”

And Lantz, now working at a new law firm, is working on starting discovery proceedings in neighboring King County, home of Seattle, the largest city in the state.

www.intelagencies.com

Henry Sapiecha

POLICE CHARGE NAKED WOMAN WITH DRINK DRIVING OFFENSE IN AUSTRALIA

car-keys-&-alcohol image www.policesearch.net

A CASINO woman was completely naked and told police she’d had 10 schooners of beer, two cans of beer and a whole bottle of wine when she was pulled over while driving along Johnston St in Casino earlier this year.

Just after midnight on February 20, police patrolling the Casino CBD noticed a Holden Commodore sedan driving extremely slowly, without its headlights on.

Cynthia Fay Dickson was stopped by police when she turned into Walker St.

When an officer approached Dickson’s Commodore, he noticed she was completely naked and affected by alcohol, police facts stated.

“The accused did not have one stitch of clothing on or any footwear, her speech was slurred and difficult to understand, her eyes were glassy/bloodshot and the vehicle reeked of alcohol,” police facts tendered yesterday before Casino Local Court stated.

Dickson then underwent a roadside breath test, which returned a positive high-range reading.

She was arrested and given a blanket to cover herself, while she was taken to Casino police station for a second breath test.

In an interview with police, Dickson said she had 10 schooners of XXXX beer at a Casino pub, before going home and having two cans of XXXX beer and a full bottle of wine.

Officers were told this occurred between 5.30pm and 11.25pm the evening before, and she hadn’t eaten during that time.

Despite being clearly affected by alcohol, police facts said Dickson was open about why she was naked: “When questioned about her naked state, the accused was rather calm and collected, indicating to police she simply decided to go for a drive to Lismore.”

At Casino police station, Dickson registered a mid-range blood alcohol reading of 0.135.

When she was told about the result of the breath test Dickson had more words with police.

“That’s bad, I am fu**ed,” police facts stated.

“Who cares, you just learn not to do it again.”

When Dickson appeared before Magistrate David Heilpern at Casino Local Court yesterday, she pleaded guilty to mid-range drink driving.

She told the court she had completed the Traffic Offenders Program, which was an “eye opener” for her into what could have been a tragedy the night she was arrested.

GIRL SHOPPING

Henry Sapiecha

www.crimefiles.net

Woman beats drink-driving charges due to the brewery in her belly

making an alcoholic drink image www.policesearch.net

Some human bodies produce alcohol of their own accord.

www.foodpassions.net

Some people have six-packs and others have kegs, but it appears an unusual few actually have an entire brewery operating in their bellies.

That fact has emerged in the United States, where a woman last month successfully beat a drink-driving charge by arguing that she suffered from “auto-brewery syndrome”.

The woman was arrested in Hamburg, New York state, in October 2014 after she was seen driving with a flat tyre and “weaving all over” the road, according to local police.

brewery & bottles of beer assembly line image www.policesearch.net

Abnormally high levels yeast can turn a stomach into a brewery. Photo: Jasper Juinen

The 35-year-old schoolteacher was breathalysed and returned a blood alcohol reading of 0.33 – more than four times the state’s legal limit of 0.08

The woman, who has not been named, claimed to have only consumed four drinks over the six hours leading up to the test, according to CNN, which with her size and weight should have resulted in an alcohol reading of between 0.01 and 0.05.

Seeking an explanation, her defence lawyer Joseph Marusak turned to the internet and soon found one: auto-brewery syndrome.

The extremely rare condition, also known as gut fermentation syndrome, can occur when abnormally high levels of gastrointestinal yeast turns food carbohydrates into ethanol.

“She can register a blood alcohol content that would have you or I falling down drunk, but she can function,” Mr Marusak told local newspaper The Buffalo News.

He said his client had so much yeast in her gut that it functioned like a “brewery”, resulting in “one of the strangest cases I’ve ever been involved with in more than 30 years as a lawyer.”

Mr Marusak hired two nurses and a professional trained in using breathalysers to monitor his client’s blood alcohol levels on a day when she had not been drinking at all.

Lo and behold, she returned levels similar to those on the day she was arrested.

Mr Marusak presented those and other medical tests in court, which was persuaded by the evidence and dismissed the drink-driving charges on December 9.

Prosecutors, however, are seeking to have the charges reinstated.

In the meantime the woman has successfully treated her condition by removing yeast from her diet and taking anti-fungal medication.

ooo

Henry Sapiecha

ALCO TESTERS FITTED TO CARS TO BE MANDATORY FOR HIGH RANGE DRINK DRIVERS IN NSW AUSTRALIA

Thousands of NSW drivers will be subject to alcohol interlocks under changes coming into effect on February 1.

Thousands of NSW drivers will be subject to alcohol interlocks under changes coming into effect on February 1.

Mandatory alcohol interlocks fitted to thousands of cars under a new system in NSW are likely to force drivers to cut much more than booze out of their system.

Motorists convicted of high-range drink driving or repeated low-range offences in NSW must have alcohol detection devices fitted to their cars for a minimum of 12 months under changes that come into effect from February 1.

Interlock devices test a driver’s breath for alcohol and electronically prevent cars from starting if more than trace amounts of booze are detected

Interlocks prevent drivers from starting their cars if they have alcohol on their breath.

Interlocks prevent drivers from starting their cars if they have alcohol on their breath.

The devices randomly retest drivers once moving to make sure they have not attempted to fool the system, though popular food, drink and grooming products can produce a false positive.

The NSW Government says all drivers caught with blood alcohol concentrations of more than 0.150 – triple the legal limit – will pay around $2200 per year to rent machines from Guardian Interlock Systems, Draeger Safety Pacific or Smart Start Interlocks. Interlocks can send reports back to authorities that show how often people drive, and whether they have tried to start the car after drinking.

The devices have been available to NSW magistrates as an optional punishment for drink-driving offences since 2003 but have not been mandatory until now.

Roads and Freight minister Duncan Gay expects up to 6000 people will be subject to the program each year.

“This program is about protecting innocent people who unfairly have their lives shattered by a drunken idiot,” Gay says.

“I will not stand for drink drivers who gamble with other people’s lives due to their stupid and irresponsible actions.

“While we’ve seen a huge drop in alcohol-related road trauma over the last 30 years, it is a disgrace to still see over 20,000 drivers in NSW convicted of drink driving offences every year.

“Most offenders face up to their actions and don’t re-offend, but unfortunately one-in-six offenders will get another drink driving offence within five years – it is this group we are targeting.”

Interlocks are used across Australia, though they re not mandatory in all states.

Stiff penalties discourage drivers from having other people to breathe into devices on behalf of a restricted driver, and those who do provide samples for restricted drivers in NSW face fines of up to $2200.

Victoria will counter that problem from January 30 with a requirement that cameras record who provides breath samples for all newly interlocks.

But the machines are not foolproof. Consumer feedback for the devices features plenty of criticism that the machines are too sensitive to alcohol and prevent people who have not consumed alcohol from starting their cars.

Disgruntled US customers have turned online to complain about limitations surrounding Smart Start interlocks that suggest “It gauges any misstep as an intent to drink and drive”, the “device can fail based on non-alcohol related issues” and that their car battery “drained dead three times”.

Fact sheets and handbooks for common interlocks suggest people avoid a range of products that can interfere with alcohol detection systems.
Six things that can fool alcohol interlock devices:

1 – Spicy food

Fiery food can interact with stomach acid to produce methane gas, which some interlock devices may incorrectly interpret as alcohol. Burping on the breathalyser may be a bad idea.

2 – Donuts and cinnamon rolls

It’s not just hot stuff that can fool a breathalyser, with sweet pastries proving problematic from time to time. Smart Start’s US website says “the sugar and the active yeast can combine to create a low level alcohol fail some of the time”, but that waiting to produce a second test should give an accurate result.

3 – Cigarettes

In some circumstances, cigarettes – particularly menthol-flavoured – can produce a false positive. Deep breathing before a test can help reduce the effect.

4 – Chocolates

Some chocolates contain a small amount of alcohol that could trigger a reaction from breathalysers. But it’s not just chocolate – a Victorian man reportedly demonstrated the effect of a Bubble O’Bill ice cream on a breathalyser during an application to have an alcohol interlock removed in 2009 by eating the treat in court and recording a blood alcohol concentration of 0.018.

5 – Mouthwash

Worried your feast of curry, donuts, chocolate and ice cream could trigger the interlock? Steer clear of rinsing with mouthwash, as some brands use alcohol to kill germs and keep breath fresh. Alcohol-free variants are available, but interlock manufacturers recommend rinsing with water rather than medicated or flavoured products.

6 – Perfume and aftershave:

Many forms of perfume and aftershave contain alcohol that can trigger interlocks. One brand says its system will not react to “heavy concentrations”, though a discreet breeze of Eau de parfum could be a better bet than bathing in Brut.

OOO

Henry Sapiecha