Drunk Driving and Trade Secrets

The Wall Street Journal reports today that defense attorneys in Florida have commenced a clever strategy of having their clients' convictions overturned due to their attorneys' inability to review the source code in the software that runs the Intoxilyzer 500 - the instrument the State of Florida uses to detect alchohol on the breath of suspected drunk drivers. The defense attorneys apparently contend that their clients have "the right to examine the machine that brings evidence against them." An appellate court sitting in Daytona Beach agreed in one such case and held that the State of Florida had to produce "full information" about the test that determines the blood-alcohol level of drivers suspected of drunk driving - and numerous trial courts later interpreted that appellate ruling as permitting Florida's defense attorneys to access the source code for the Intoxilyzer 500! CMI Group, a company out of Owensboro, Kentucky that makes the Intoxilyzer 500, has refused to turn over the source code for its breathalyzer and this has resulted in over 1000 of the breath test results being thrown out of court as inadmissible.

Our thinking is that a company making a competitive breathalyzer with that of the CMI Group has a fine marketing opportunity right now . . . it would be as simple as proclaiming "our breathalyzer will accurately determine the state of intoxication of Florida's drivers AND be admissible all the while as we will permit an examination of our source code by any defense attorney smart enough to make sense of it." This is a rare circumstance where holding on too tightly to trade secrets might cost you your business by making your product unmarketable.