Judge: Prosecutors must get DUI breath-test software code

Source: Tucson Citizen

A.J. FLICK
Published: 10.27.2008
A judge ordered the Pima County Attorney's Office to ask a leading manufacturer of alcohol breath-test machines to reveal its software code.
Superior Court Judge Deborah Bernini noted Monday that Owensboro, Ky.-based CMI Inc. so far has refused to divulge its source code to defense attorneys, despite a previous order.
"Every lawyer in this room should be concerned about CMI's unwillingness to follow the court's order," Bernini said.
Bernini said CMI must hand over its source code in electronic form by Nov. 10.
CMI has a policy of releasing the source code in a printout if the recipient agrees not to release it to anyone else.
Defense attorneys asked for - and Bernini ordered - the source code in electronic form so they can test its veracity.
"This information would be available with ease in an email," Bernini said Monday.
She noted that she even allowed extra time for CMI to give the code to lead defense attorney James Nesci.
"They had all the time in the world to comply with the order and/or suggest why the order was in error," Bernini said. "They have chosen not to do so."
Bernini set a Nov. 24 hearing for CMI President Toby Hall to explain why he and CMI shouldn't be held in contempt of court for not following her order.
Deputy County Attorney Robin Schwartz told Bernini that she isn't sure prosecutors can get CMI to divulge the source code either.
Defense attorneys in the 23 alleged drunken-driving cases before Bernini want the source code so they can check for accuracy of breath tests for alcohol.
"I don't think CMI will ever turn over the source code," Nesci told Bernini.
"I think CMI is hiding something in the source code," Nesci said.
Nesci said the Intoxilyzer 8000, which is used by Tucson police, isn't as effective as CMI claims it is and divulging the source code would prove it.
"If they're found to be untruthful to the people who have spent millions of dollars for their equipment, they could be sued into oblivion," Nesci said.
Nesci said absent the source code, the defense wanted Bernini to dismiss the cases or suppress the breath-test evidence.
Schwartz argued that state law says that even if attorneys can't get the schematics and software for a breath-test machine, breath test results are still admissible.
Nesci argued in his motion to suppress the breath tests that the statute is unconstitutional and shows how the state Legislature interferes in judicial matters.
Bernini said Nesci's argument was "well-taken," which Nesci and co-counsel Joseph P. St. Louis said amounts to agreeing it was unconstitutional.
Schwartz asked Bernini for a delay so prosecutors could ask the Arizona Court of Appeals to review her order forcing them to get the code.
Bernini denied the request, saying she was sure the appellate court would find sufficient cause to order the source code.
Nesci said after the hearing that Bernini's rulings are unprecedented among similar hearings held across the country and should hold up in appellate court.