Lawyers Win Access to DUI Test Software
Tucson, AZ. Sept 13 - Defense attorneys scored a major victory Friday when a Pima County Superior Court judge ruled they should be given access to the software that powers a breath-testing machine used on suspected drunken drivers.
For the past several months, defense attorneys throughout the county have been arguing that they should be given the “source code,” or software, used in the Intoxilyzer 8000.
The attorneys say the source code is needed to determine whether breath tests administered by the Tucson Police Department and the University of Arizona Police Department are accurate and reliable. (The Pima County Sheriff’s Department and the Arizona Department of Public Safety take blood samples.)
The defense attorneys maintain the issue is a constitutional one; defendants have the right to cross-examine and confront their accusers.
Prosecutors have maintained that experts have other ways to determine if the test results are reliable. They also say the source code is a trade secret and shouldn’t be disclosed.
On Friday, Judge Deborah Bernini ruled that the source code is not a trade secret. She noted that the president of CMI, the company that manufactures the machine, testified that the Intoxilyzer 8000 is not patented, and neither is its copyright on the source code.
Bernini ordered CMI to turn over the source code to attorney James Nesci, who is the lead counsel on all of the cases…
City Court judges have split on the issue, with six siding with the defense attorneys, two siding with prosecutors and one not yet issuing a ruling. Justice Court judges have refrained from issuing any rulings, preferring to wait for Bernini to issue her ruling.
In the City Court cases, the judges not only ruled that the defense attorneys should have been given the source code, but they prohibited prosecutors from using breath-test results against about 170 defendants…
“An inaccurate machine is of no benefit to anyone,” Nesci said. “Inaccurate results could mean imprisonment for innocent people and exoneration for the guilty. People have the right to know how these machines get their results.”
Pima County attorneys aren’t the only ones battling with CMI, the producer of the Intoxilyzer 8000, Nesci said.
Law enforcement officers across Arizona began using the Intoxilyzer 8000 last year, Nesci said.
Police like the device because it weighs half of what its predecessor weighs and can be powered by a squad car’s cigarette lighter, Nesci said.
Six other states have been battling CMI over the source code — Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey.
“CMI has currently racked up over $1.2 million (in fines) in a civil contempt order for not disclosing the source code” in Florida, Nesci said.
The machine also failed to meet precision and accuracy testing in Tennessee, so law-enforcement agencies there are prohibited from using it, Nesci said.
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