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Florida Court Orders Disclosure of Source Code for Software used in Breathalyzer Device
A three-judge panel of a Sarasota County court recently granted a motion by the defendant in a drunk-driving case to compel production of the software source code of a breath-alcohol testing machine.
The Court agreed with the defendant’s expert witness that access to the machine’s source code was essential for the purpose of verifying that the machine actually used was the same, unmodified model that was approved by Florida authorities pursuant to statutory procedures for intoxication testing purposes. State prosecutors argued that the source code was not material, and that it was confidential and proprietary information of its manufacturer.
Observing that the defendant was entitled to “full information” concerning the test, and that previous courts had held such entitlement to include manuals and schematics, the Court found “no reason to differentiate” between the importance of such schematics and the production of the EPROM source code that instructed the machine how to operate. To construe otherwise, the Court held, would permit the State to use confidential information to establish guilt without disclosing the information to the defendant for inspection and possible impeachment. Without the ability to see how the device works, the Court observed, the breathalyzer would be nothing more than a “mystical machine” used to establish guilt.
In addressing the trade secret interests of the manufacturer, the Court noted that trade secret privilege is not allowed where it would “otherwise work injustice”. To protect the manufacturer’s trade secret interests, the Court’s order limited disclosure of the source code to the defendant’s expert witness only, and obliged the witness not to disclose or copy the code and to return it to the State upon completion of his examination.
For a copy of the decision, visit: