News of Breath Testing Wars Makes Its Way from Ohio to Charleston, SC
This is a story worth following.
Background. The manufacturer of the breath testing machine we use in the Palmetto State, National Patent Analytical Company, is located in Mansfield, Ohio. So, you would think that when Ohio decided to replace Datamaster devices (some of which are popping up for sale on Ebay for pennies on the dollar of what Ohio paid) the Datamaster would get due consideration. (Currently, 90 percent of the breath test machines in Ohio are Datamasters. Ohio did not opt to purchase the new model of the Datamaster, the DMT, which South Carolina has opted to purchase.)
No way. Mid-November, an Ohio Board approved without question spending $6.4 million to purchase the breath alcohol testing device made by a chief competitor to the Datamaster Located in Kentucky.
Opting for the the Intoxilyzer 8000, made by the CMI Company, Ohio is being criticized from a variety of fronts about the decision.
A primary concern about the Intoxilyzer was that reported in the The Plain Dealer www.cleveland.com on November 22, 2008. This article reports that the Ohio Senate Finance Chairman Sen. John Carey wants the state to reconsider the purchase decision. Carey was concerned about reports by the Plain Dealer that several states have dismissed or delayed thousands of drunk driving cases because of questions about the machine's accuracy. Carey was also concerned over lawsuits against CMI for failure to comply with court orders for the company to turn over source code software to defense lawyers for independent testing.
Cited at Ohio.com on November 25, 2008 was concern over the close connection between Dean Ward, the chief of the Bureau of Alcohol and Drug Testing at the health department and top officials at CMI.
The National Patent Analytical Company cried foul suggesting that the specifications published by Ohio for the new machine were tailor-made. President John Fusco told the Plain Dealer that only CMI, Inc. met those criteria. No details were provided in that regard.
On November 26, 2008, the Arizona Daily Star reported that a Tucson City judge threw out evidence in 69 more DUI cases. There, CMI had been ordered by the court to produce the source code software for the machine for independent testing. CMI has refused to produce the code unless those obtaining it agree to certain terms and conditions imposed by CMI. While protection of its trade secrets is the asserted reason, one defense to the court orders that has been asserted by CMI is that they need not produce the source code since a defense lawyer could simply buy one of its machines, extract the memory chip media from it, and have it code secured by ”reverse engineering“ at a cost of around $100,000 which would offer no trade secret protection .
So what does this have to do with the device used in South Carolina? Or the new device to be used in South Carolina?
NOTE:
-the analytical software in the Datamaster used in South Carolina has never been obtained in a form making it subject to independent testing pursuant to applicable software engineering standards and therefore never truly independently tested.
- requests for this code have been made of SLED since the early 1990's
-the source code, developmental documentation, testing records, debugging reports, compilation records, assembly documentation and other components are needed for a meaningful analysis of the code to be conducted.
-South Carolina has not conducted this level of testing, nor has the federal government. The response has been that the machine tests itself and that is sufficient despite a concession that without the analytical software code, the machine is worthless.
