Thursday, January 31, 2008, 1/31/2008 12:03:00 PM

Trade Secrets of Breathalyzers - Kentucky Gets in On The Act

By Todd
The Kentucky Court of Appeals has apparently reversed two lower court rulings that defendants in drunk driving cases cannot test the accuracy of the breathalyzer machines that help convict them.

As you can see, this defense strategy is not one limited to Kentucky: http://arstechnica.com/news.ars/post/20080128-are-breathalyzers-accurate-dwi-defendant-wants-source-code.html.

We here at Womble Trade Secrets are not criminal defense attorneys BUT we did go to law school. Seems to us that a breathalyzer analytical machine is a device that should be open to examination by defendants in these cases. We aren't certain why the source code of the machine is relevant in that examination but, if it is, there could be a way in which defendants' counsel could review the same and test the same under court supervision such that the trade secrets contained therein will not be impaired or lost.

We can also understand why states and police and attorney generals and district attorneys wouldn't like such a world. It makes things harder on them - they might be proven to be using a machine to convict people that isn't working perfectly or isn't getting it exactly right.

We'll keep an eye on this one for you.

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