As part of the ongoing criminal trial State v. Bjorkland, No. 2004 CT 014406 (Sarasota County Ct. Nov. 2, 2005) (order granting access to source code), a Florida trial court recently ruled that the State of Florida must produce the software source code for the EPROM’s (erasable programmable read only memory) in the Intoxilyzer machine used to test the defendants’ blood alcohol content. The defendants in the case claim that they need access to the EPROM’s in order to determine whether the devices have been modified and whether they have been approved by the Florida Department of Law Enforcement. The court held that, contrary to the arguments of the State, the production of the source code was material to the defendant’s theory of defense and that the State could be compelled to produce the source code even though it was maintained as a confidential trade secret by CMI, Inc., the vendor who manufactured the machines.
The expert witness for the defense testified that changes had apparently been made to the EPROM’s, but that he could not determine if the change was substantial or inconsequential without access to the source code. As evidence that such changes have the potential to be substantial, the court pointed to the case of State v. Flood, 523 So.2d 1180 (Fla. 5th DCA 1988), in which it was determined through discovery that the government had modified a breath-testing machine to make it more sensitive by bypassing or modifying the Taguchi Sensor Cell, a component in intoximeters that subtracts acetone and other interfering hydrocarbons from the alcohol reading. On the basis of these concerns, the court asserted that “an instrument or machine that if believed, establishes the guilt of an accused, subjecting them to fines, loss of driving privileges and loss of freedom should be made available to the defense for open inspection.”
The court ruled that the defendants had a right to inspect the source code under section 316.1932(1)(f)(4), Fla. Stat. (2005), which requires that when a person tested with a machine requests it, “full information” concerning the test is to be made available. In doing so, the court extended the recent decision in Muldowny v. State, 871 So.2d 911 (Fla. 5th DCA 2004), which held that “operating manuals, maintenance manuals and schematics” may be requested under the statute in order to determine if the machine used is the same unmodified model that Florida statutes approve. The court found that “the software is an integral part of the intoxilyzer” and that therefore it is a necessary part of the “full information” requirement of section 316.1932.
In addition, the court found that the State could not withhold the source code on the basis of CMI’s trade secret privilege. Under section 90.506 of the Florida Evidence Code, the privilege against disclosure only applies “if the allowance of the privilege will not conceal fraud or otherwise work injustice.” Thus, a court may order disclosure of a trade secret when a party makes the requisite factual showing that the information is necessary to its theory of defense. In this case the court determined that the defendants had established that the information was material, and that the state had failed to establish that there were available alternatives, or that there would be irreparable harm to the manufacturer. The court also noted but did not address the question of whether or not the State has standing to assert trade secret privileges on behalf of a third party who did not appear at the hearing.
In order to protect CMI’s trade secrets, the court ordered that the source code be disclosed only to the expert witness for the defense, and that he should return the information to the State after his examination without making any copies of it.