Who Owns the Breathalyzer Source Code

You’re caught driving after having a few to many and arrested for DWI. After you sober up, you need to come up with a good excuse or legal position to save your butt. How about blaming the breathalyzer machine? That’s a number of folks have tried and it worked.

Three years ago in Florida, 150 defendants joined forces and demanded complete access to the breathalyzer machine including the proprietary source code that controls the device.  The Intoxilyzer 5000 is manufactured by CMI Inc and naturally, CMI considers the software in their machine to be off limits.  The Florida courts ruled in favor of the defendants and ordered CMI to release the source code. They refused so all charges were dropped.

Last February an alleged drunk driver in Minnesota, Dale Lee Underdahl decided to use the same defense. Again, the courts ruled that access to the technology was the defendants right. In this particular case, the reason behind the ruling is significant!

Not only did the defendant have the right to the source code, but the Minnesota Supreme Court declared that the source code was property of the state of Minnesota.  In purchasing the Intoxilyzer 5000, the state bid was worded so that it owned “all right, title, and interest in all copyrightable material”. 

Hey, do I own the rights to Microsoft Windows source code by purchasing Windows?  Unfortunately, no.  In the Minnesota case, CMI sales department agreed to purchase terms that they didn’t understand. They probably thought they’d find a way around a section where they agree to provide “information to be used by attorneys…”.

This ruling still spotlights an issue that I’m sure I’ll write about again.  Will we see a Zango sue a company like PC Tools and request access to the source code to see why Spyware Doctor deletes it’s software?

What about the source code to your new local voting booth?  Diebold one of the best known makers of voting software has been trying to exit the business.  Nobody would touch it, so now they’ve decided to just change the name of the e-Voting division. The new business will be called “Premier Election Solutions”.