Category Archives: TESTS

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 in South Australia adopting facial-recognition technology

keypoint-facial-recognition-software-illo-csse-uwa image www.policesearch.net

The South Australian government has awarded NEC Australia with a AU$780,000 contract to implement facial-recognition technology as of late October for the state’s police force in an effort to make it easier to identify persons of interest and missing persons.

The facial-recognition technology allows police to compare images of suspects from such sources as closed-circuit television (CCTV) footage against offender databases. In future, the technology has the capacity to instantly identify people on real-time CCTV footage, but this feature won’t be used on launch.

According to Police Minister Peter Malinauskas, the technology will be rolled out by late October as part of a state government push to reduce crime by boosting police numbers and resources.

“Our police budget is at the highest level in history, with more front-line police soon to be on the beat than ever before,” Malinauskas said on Monday.

“The world we live in is changing, and with that comes a need to change the way we police.”

The South Australian government’s decision to deploy facial identification follows the Northern Territory’s implementation of the technology in September last year.

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The success of the technology in the Northern Territory, which was also implemented by NEC Australia, influenced South Australia to adopt it, South Australia Police Superintendent Scott Allison said.

“They’ve had extraordinary results from CCTV images that they’ve captured, through to enhanced investigations, even historical investigations,” Allison said.

Northern Territory Police partnered with NEC Australia almost a year ago to implement facial-recognition technology, deploying NEC’s NeoFace Reveal solution following a trial of the tech in early 2015. The technology allows NT Police to search through its database of photos, CCTV footage, and videos taken from phones, drones, and body-worn cameras to compare to the police database of photos.

In April this year, NEC Australia also secured a AU$52 million contract with Australian law-enforcement technology agency CrimTrac to replace the National Automated Fingerprint Identification System (NAFIS) in 2017.

The system will involve not only fingerprints, but also palm prints and facial recognition.

“The Biometric Identification System (BIS) will not only integrate with existing law-enforcement systems, but advance as our nation’s biometric capability advances,” Minister Assisting the Prime Minister on Counter Terrorism Michael Keenan said in a statement at the time.

“This is vital in the current national security landscape, because it is essential to have robust and efficient cross-border information sharing to support the law enforcement agencies that protect our communities.

“It’s also vital our authorities are one step ahead of the sophistication of organised criminal syndicates who are adopting new and advanced technologies to exploit Australians and increase the misery they peddle.”

The Australian government had allocated AU$700,000 to CrimTrac as part of its 2015 Budget for the development of the facial recognition system.

The federal government also announced last year that it would spend AU$18.5 million to establish the National Facial Biometric Matching Capability for image-sharing purposes by government and law-enforcement agencies, which was expected to be up and running by mid-2016.

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Henry Sapiecha

Legal nightmare for man as drug driving test returns positive for drug he’s never used

Cabinetmaker Steven Hunt image www.policesearch.net

Cabinetmaker Steven Hunt. Photo: Rohan Thomson

When Steve Hunt was pulled over for a routine roadside drug test on his way home from work, he thought everything would be fine.

He was wrong. I have no trust whatsoever in the police any more. Steve Hunt

That one test triggered a nightmare scenario in which he was repeatedly misdiagnosed as having methamphetamine – a drug he has never touched – in his system by police and NSW Health tests.

The case triggered NSW Health to begin double-testing samples, but that was too late for Mr Hunt, who was forced to pull $5000 out of his home loan to fight for his innocence. Losing his licence would mean he couldn’t work.

The state government is planning a massive roll-out of the same drug-driving tests that misdiagnosed Mr Hunt, with 100,000 NSW drivers expected to be tested – and it’s not to identify those under the influence of drugs (a different offence) but simply whether they have the “presence” of drugs in their systems.

Police admit there is no lower limit used for the amount of drugs detected.

“The first moment I realised something was wrong was when the policeman came back to me and said ‘I think we are going to have a problem here’,” Mr Hunt said.

The test had detected methamphetamine in his saliva. He was arrested and taken to a portable testing station, where a second test was negative. A further sample was sent to NSW Health pathology. Two weeks later he got the result: positive.

“I had been sitting there going to my wife ‘no, no, no, this won’t come back positive’,” he said. “I have never taken drugs in my life.”

Mr Hunt’s lawyers demanded the sample be retested. The same NSW Health lab, testing the same sample, got a negative result. A further test was also negative, and in court police did not present evidence, and the case was dismissed.

“I have no trust whatsoever in the police any more,” Mr Hunt said. “If it can go wrong once, it can go wrong again, and I don’t want to lose another five grand.”

Fairfax Media has also spoken to a woman, who did not want to be named, who had marijuana detected despite never having used the drug. She also had a positive, then negative, then positive result, but was never told she could get it retested.

Greens MP and justice spokesman David Shoebridge said the roadside drug testing was a “lottery”.

“The problem is the police are testing for tiny trace elements of drugs and this makes the results inherently unreliable,” Mr Shoebridge said. “Steve was just minding his own business … and he had his life turned upside down by a plainly stupid law. It’s awful what has happened to him, how much it has cost, and we know he is not alone.”

Mr Shoebridge said it was extremely difficult to get legal costs back from the government, but he had written to the Police Minister to suggest Mr Hunt be given an ex-gratia payment.

“It’s time to scrap the failed roadside testing regime and put in place a rational program that tests for impairment, and tests for every drug, not just a handful of illegal drugs,” Mr Shoebridge said.

NSW Police maintain the tests are an important deterrence tool in preventing road accidents caused by impaired drivers, which are implicated in 14 per cent of road fatalities. One in 10 tests this year returned a positive result, compared with one in 300 alcohol tests.

Sharon Neville, the acting director of the NSW Health Forensic and Analytical Science Service (FASS), said that since roadside drug testing was introduced in 2007 it had tested more than 14,000 samples, and Mr Hunt’s case was the only error it was aware of.

“The initial incorrect result reported by FASS was due to a manual handling error,” she said. “Additional measures and quality control steps were implemented as a result of this case, with all samples now being analysed twice before reporting. These steps ensure tighter controls on manual handling and all other parts of the process.”

She said the screening tests conducted by NSW Police had different sensitivities to the “comprehensive” testing equipment used by FASS.

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Henry Sapiecha