After a long bloody battle, Florida DUI Attorney, Stuart Hyman, has negotiated an agreement giving him and his experts access to the source code for two cases in Seminole County. The parties agreed that the Court could resolve certain outstanding issues including the location of the examination and the scope of the protective order.
The Court signed an order that the agreed upon examination shall take place at CMI, Inc., headquarters in Owesboro, Kentucky within 90 days of the order dated March 8, 2011. Circuit Court Judge for Seminole County, the Honorable Marlene M. Alva, signed the order.
Intoxilyzer 8000 Source Code geeks have reason to celebrate because the terms of the viewing will finally allow for a full examination of the Intoxilyzer 8000 Source Code assuming that CMI complies fully with the letter and spirit of the order.
The one page order references the terms of the viewing in an Exhibit “A” which was attached to the order. Unlike previous offers from CMI, this agreement allows access to the “complete Source Codes for software versions 8100.26 and 8100.27 in their native electronic format, capable of review and analysis by commercial source review software such as LINT or Understand.” The information and items to be provided also include:
- A version revision history for software version 8100.00 through 8100.27.
- All libraries and files used to assembly or compile and link the Source Code.
- All make files and scripts files (as applicable only to the Intoxilyzer 8000) used to assemble or compile and link the Source Code. Source code compilation documentation as well as any data files required to produce compiled applications for the Intoxilyzer 8000 as it is used in Florida, including any compilation data to produce the files contained on distribution CSD’s as well as executable application files as intended to be downloaded for use in Florida Intoxilyzer.
- The compiler, assembler and linker for the Am 188 processor as applicable only to the Florida Intoxilyzer 8000.
- A computer capable of viewing the Source Code of the Florida Intoxilyzer program.
- Specifications for source code development software to include any IDE’s, compilers, assemblers or other commercial software utilized to process the Florida Intoxilyzer 8000 source code.
- Completely assembled or compiled and linked “HEX files” for the AM 188 system, and with the HEX file software version 8100.27 loaded in a flash chip for the Am 188 system as applicable to the Florida Intoxilyzer 8000.
- A printout of actual data obtained as a result of calibration.
- A COBRA system as used by the State of Florida to download data from instruments and the cable required to link and test an instrument.
- An Intoxilyzer, configured for the State of Florida for testing, loaded with the flash chips.
- Web bath simulator and solutions for instrument testing.
- Any formal change orders in CMI’s possession specific to the Florida software. In addition, CMI will conduct a good-faith search of its e-mail databases in order to attempt to identify and correspondence between CMI and FDLE relating to requested software changes for the Intoxilyzer 8000. However, because of the nature and frequency of communications between CMI and FDLE, CMI cannot guarantee that it will capture every conceivable electronic communication that may have a bearing on the development or modification of the software.
The two page Non-Disclosure Agreement appears to be pretty standard and provides in part, “I understand and acknowledge that the Source Code is the intellectual property of CMI, Inc., a corporation of the Commonwealth of Kentucky having its principal place of business at 316 East 9th Street, Owensboro, Kentucky 42303. I also understand and acknowledge that CMI asserts that the Source Code is a valuable trade secret protected by applicable law.”
Most importantly, it does not appear that this non-disclosure agreement would prevent Dr. Myler from testifying as an expert on the Intoxilyzer 8000 in other DUI cases throughout Florida which was a major concern. Although Dr. Harvey Myler, a professor of electrical engineering is not specifically mentioned in the order or exhibits, Exhibit “B” of the order contains a list of items to be provide which was prepared by Dr. Myler. This Exhibit “B” is nearly identical to the list of requested items presented by Dr. Myler during the source code hearings in Hillsborough County, FL.
This new development shifts the entire “source code” litigation yet again. Only time will tell what evidence Dr. Myler uncovers that may help explain the obvious glitches in the breathalyzer machine used throughout Florida. Viewing the source code my also uncover additional glitches that could not previously be viewed based on the limited information provided to Florida judges, prosecutors and defense attorneys. Congratulations to Stuart Hyman, a DUI attorney in Orlando, FL, who has lead the way on the source code issue for the rest of us.
So what do other DUI attorneys think of this recent development? Can we still continue to use Dr. Myler as our expert and if so, with what limitations? What impact does this ruling have on other pending source code litigation in other jurisdictions after the CMI vs. Landrum decision from the Second DCA?
Stay tuned for more updates soon….
UPDATE: On May 31, 2011, just days before Dr. Myler was scheduled to arrive, CMI conducted a “diligent search” of the “remaining documents” and discovered that the source code for the Intoxilyzer 8000 had been lost or not preserved. Recently filed affidavits from CMI suggest that CMI has no source code, engineering notes, or revision histories for the “evaluation software” included on the instrument sent to the Department of Transportation in 2001 for inclusion on the Conforming Products List.
Really? CMI can’t find its valuable “source code” because they lost it like I lose my car keys? Or CMI never had the source code to begin with because it is hidden in a value in the UK at Lion Laboratories? Maybe they don’t have it because it is in an office down the hall with MPD (the parent company) logo on the door. And judges in Florida are just going to go along with that? It doesn’t pass the laugh test.
Additionally, CMI has no source code, engineering notes, or revision histories for the 8100.10 version of the Florida software used for the evaluation and approval process in Florida in 2002. Anything related to version 8100.11, 8100.12, and 8100.13 has also been lost.
What’s left? Certain revision histories for version 8100.14 through 8100.25, and the software for version 8100.26 and 8100.27. Many believe CMI would not have made this disclosure at all had it not been for Stuart Hyman and Dr. Myler making the plans to travel all the way to Kentucky to conduct an examination of the source code which is now impossible.
CMI had stated in affidavits that it is unable to reconstruct the source code. Is is game over for CMI? When is Dr. Myler going back to finish his analysis of whatever is left of the source code?