TUCSON, AZ -- Defense attorneys are neither entitled to the source code for the breath-testing machine commonly used in drunk driving cases nor to its software, the Arizona Court of Appeals has ruled.
For more than a year, defense attorneys throughout Pima County have been arguing they should be given the "source code" and software used in the Intoxilyzer 8000.
The attorneys claim 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.
Anomalies have arisen but without having access to the inner-workings of the machine, defense attorneys and their expert witnesses say they are unable to determine the extent of them.
The manufacturer, CMI Inc. of Owensboro, Ky., contends that the code is a trade secret and has resisted court efforts to require it to disclose the code in electronic form without it being subject to nondisclosure agreements.
At least six other states have been battling CMI over the software -- Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey.
Pima County Superior Court Judge Deborah Bernini ordered the county Attorney's Office to give the defense attorneys the source code in October 2008, but the state Court of Appeals overturned her ruling in April. The case went back to the appeals court because Bernini did not believe the upper court's ruling pertained to the machine's software.
On Tuesday. the appeals court ruled prosecutors don't have to hand over either the source code or the software.
Presiding Judge Philip Espinosa wrote in his opinion that even if defense attorneys are correct that there have been anomalies, they have failed to prove those anomalies affect the reliability of the tests.
David Berkman, Pima County's chief criminal deputy county attorney, said "this decision is going to impact thousands of cases across the state." The ruling affects between 900 and 1,000 pending cases in Tucson City Court alone.
Some Pima County defense lawyers said they now intend to ask judges to dismiss the results of every test administered by an Intoxilyzer 8000 on a case-by-case basis.
They will argue it is unfair to admit the test results when the courts have ruled they have a "substantial need" for the source code and yet have no means by which to get it.
