Major Victory for DUI Defense

Posted on: September 18, 2008 at 10:39 a.m.

In Arizona, a judge ruled that 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 breath-testing 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.

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.

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.

Breath test machines such as these measure the blood alcohol content of the accused. Blood alcohol concentration, or BAC, is the concentration of alcohol in your blood and is what law enforcement officials use to determine whether or not you are guilty of a DUI offense. Many errors may be made in how a breath test is administered, how the machine is calibrated, and how the results are interpreted. In addition, each person

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Major Victory for DUI Defense

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