Legal Reference

Firm must disclose DUI software

Of course this doesn't effect anybody outside of Pima County and probably outside of this judge's courtroom, but lets hope it is a trend.


Judge: Defense must be given DUI machine software

Sept. 12, 2008 04:04 PM

Associated Press

TUCSON - A Pima County Superior Court judge on Friday ruled that software that powers a breath-testing machine used on suspected drunken drivers must be revealed to defense lawyers.

The ruling was seen as a major victory for attorneys challenging the accuracy and reliability of the Intoxilyzer 8000 machines used by the Tucson Police Department and University of Arizona Police Department. Many other departments across the state also use the devices and lawyers said the case has been closely watched.

The attorneys challenging more than 20 felony DUI cases maintain the issue is a constitutional one. They say defendants have the right to cross-examine and confront their accusers.

Prosecutors argue that experts have other ways to determine if the test results are reliable. They also say the source code is a trademark secret and shouldn't be disclosed.

But Judge Deborah Bernini ruled that the source code is not a trademark secret. She noted that the president of CMI, the company which manufactures the machine, testified the neither the Intoxilyzer 8000 nor its source code copyright is patented.

She ordered CMI to turn over the code to attorney James Nesci, who is the lead counsel.

Nesci said he doesn't believe CMI will comply. If they don't, he said he intends to ask Bernini to dismiss the 23 felony DUI cases that are presently before her.

"I will bet you any amount of money they won't turn it over," Nesci told the Arizona Daily Star. "They've never turned it over to anyone."

The issue has been argued multiple times in Pima County's lower courts, with city court judges splitting on the issue. In the city court cases, the judges who agreed the code should be revealed barred prosecutors from using breath test results against approximately 170 defendants.

Nesci said attorneys and judges in other Arizona counties will also be looking closely at Bernini's ruling. He said law enforcement officers across Arizona began using the Intoxilyzer 8000 last year.

Police like the device because it weights half of what its predecessor weighs and can be powered by their squad car's cigarette lighter. But unlike the earlier Intoxilyzer 5000, it isn't patented so defense experts can't obtain the diagrams and source codes needed to figure out exactly how it works, Nesci said. Other breathalyzer companies provide their source codes.

The source codes are crucial because the Intoxilyzer 8000 sometimes gives "weird" or inexplicable results, Nesci said.

Deputy Pima County Attorney Robin Schwartz argued in court documents that the defense attorneys' requests "bears all the hallmarks of a fishing expedition."

Common sense shows that people rely on software and source code information for everyday matters, Schwartz argued. One just looks at the results to know if something works or not.

David Berkman, Pima County's chief criminal deputy county attorney, said his office would be appealing Bernini's decision.