more on Breathalyzers and Open Source

[David Farber <dave () farber net>]

Begin forwarded message:

From: Ed Biebel <edward () biebel net>
Date: October 28, 2005 10:22:45 AM EDT
To: dave () farber net
Subject: RE: [IP] more on Breathalyzers and Open Source


In addition, I believe that in both Pennsylvania and New Jersey  
agreeing to
submit to a breathalyzer or blood test is a condition of having a  
driver's
license.  Refusing to take the test can result in an immediate  
suspension of
your driver's license (6 months to a year I believe).

A friend of mine that is attorney recommended not refusing the tests
(especially for a first offense) because he said that at trial a good
attorney would have leeway to present mitigating issues, challenge the
accuracy of the tests, plea to a lesser charge for a lighter  
sentence, etc.
However the refusal of the test was cut and dry and essentially  
resulted in
a mandatory punishment.

While IANAL and I'm not advocating people drink and drive (or avoid
punishment if they do), I thought this was an interesting legal  
perspective
worth mentioning.

-Ed


-----Original Message-----
From: David Farber [mailto:dave () farber net]
Sent: Tuesday, October 25, 2005 5:14 PM
To: Ip Ip
Subject: [IP] more on Breathalyzers and Open Source



Begin forwarded message:

From: Bradley Roberts <br2 () u washington edu>
Date: October 25, 2005 4:04:40 PM EDT
To: David Farber <dave () farber net>
Cc: "Andrew D. Swart" <andrew () swart com>
Subject: Re: [IP] more on Breathalyzers and Open Source


A friend got pulled over in front of me for some minor infraction
(into a bike lane too early for a right turn, if I remember
correctly).  I knew he had come from a bar and had probably had at
least one drink.  They started in on the normal dui tests (speech,
eye, coordination, etc) in front of me.  I had enough time before
this to tell him not to submit to a breathalyzer as they're
inaccurate - he said that he was probably above the limit, so I told
him that he could expect that they'd figure this out and he'd be
taken to the police station for a blood test if he refused a
breathalyzer.

By refusing to submit to the breathalyzer, under CA law (or at least
in San Luis Obispo), the officers have the option to place the person
under arrest and take them in for more thorough evaluation.  They did
this - unfortunately for my friend, he didn't take well to being
handcuffed and started to argue/resist.  Probably would have been
treated better had he not.  Ultimately his blood was tested and was
found above the legal limit.  He made a bad choice and is still
paying the consequences but no one was hurt.

However, it should be clear that if you refuse to take a breathalyzer
test, you MAY be arrested.  Whether or not you've ever had a drop of
alcohol in your life.  Refusing the test is within your rights, but
an officers suspicion will quickly place you in shackles and you'll
be subjected to the more reliable (and repeatable) tests.



> Begin forwarded message:
>
> From: "Andrew D. Swart" <andrew () swart com>
> Date: October 24, 2005 4:30:21 PM EDT
> To: dave () farber net, 'Ip Ip' <ip () v2 listbox com>
> Subject: RE: [IP] more on Breathalyzers and Open Source
> Reply-To: andrew () swart com
>
>
>
> > ...I mention all these factors because they are common in many
> > measurement instruments...
> > ...No amount of viewing the code will tell you that.
>
> A local attorney (Santa Barbara) regularly takes out full page ads in
> local papers seeking DUI clients, but also advising people of their
> rights during a suspected DUI stop.  One of his biggest pieces of
> advice:  refuse under all circumstances an invitation to take a
> breathalyzer test.  He points out that the portable technology is
> flawed
> and the results can't be verified independently (only a single
> sample).
> Instead, do no resist, if law enforcement insists, taking a blood or
> urine test.  More reliable and samples remain for independent
> testing at
> later stage.  Warning: refusing a breathalyzer test (but not the other
> tests) in California is reportedly within our rights; this may not be
> the case in all other states.
>
> Andrew Swart
>
>
>
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--
Bradley Roberts (br2 () u washington edu)
Graduate Student, Department of Materials Science & Engineering
Roberts Hall 302 Box 352120
University of Washington
Seattle, WA 98195
206-616-7485 lab
206-543-3100 fax


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