The machine the police used to test your breath is really just a simple computer. And, like all computers, breath test machines run on software. As your attorney looks into the defense of your drunk driving case in Michigan he or she may want look at the breath test machine’s software or “source code.”
Obtaining the source code may not be all that easy, and your lawyer will probably have to put up a fight to get it, and may have to be creative. An example of such creativity is to argue that because Michigan’s rules of discovery in drunk driving cases don’t specifically require the prosecutor to disclose the source code, the Michigan drunk driving laws are unconstitutional.
For example, in State v. Lindner, 2010 Ariz. App. LEXIS 155 (Ariz. Ct. App. Sept. 28, 2010) the defendant argued that because the Arizona law governing the foundational requirements for admission of a breath test do not require the state to produce the machine’s source the law violates his confrontation rights as outlined in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). He further argued that it violates his confrontation rights because it does not guarantee him the right to confront at trial both the person who created the source code and the person who prepared the quality assurance and maintenance records for the machine. The appellate court found that defendant did not point to any portion of the statute that actually precluded him from obtaining the source code or examining a witness as to the code at trial. Under Arizona law the officer who conducted the breath test appeared at trial and testified that he had the necessary permit to operate the device used to conduct the test and followed the requisite procedures in administering it. Furthermore, the court also found that it was not necessary for the creator of the device’s source code to produce that code and appear for cross-examination at trial.
Even though this Arizona case says the lack of source code does not impact the admissibility of the breath test, other similarly creative arguments may have been successful. If your lawyer can get your breath test suppressed (thrown out) you may just end up winning your drunk driving case in Michigan.
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