Pima County judge orders release of breath analyzer source code

For the past several months, defense attorneys throughout the county have been arguing they should be given the “source code” or 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.)

The defense attorneys maintain the issue is a Constitutional one; Defendants have the right to cross-examine and confront their accusers.

Prosecutors have maintained 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.

On Friday, 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 Intoxilyzer 8000 is not patented and neither is their 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.

Nesci was thrilled with the judge’s decision, but 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 said. “They’ve never turned it over to anyone.”

The issue is one that has been argued multiple times already in Pima County’s lower courts.

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.

Defense attorneys representing approximately more than 20 people arrested on felony DUI charges agreed to consolidate their cases into one and to argue it before Bernini.

In the city court cases, the judges not only ruled the defense attorneys ought to have been given the source code, but they prohibited prosecutors from using breath test results against approximately 170 defendants.

Bernini’s ruling is considered a coup for the defense because the prosecutors who lost in city court must file their appeals in Pima County Superior Court and many superior court judges will likely rely upon Bernini’s judgement when making their own determinations on the source code issue, Nesci said.

Attorneys and judges in other Arizona counties will also be looking closely at Bernini’s ruling, Nesci said.

Law enforcement officers across Arizona began using the Intoxilyzer 8000 last year, Nesci said.

Police like the device because it weights half of what its predecessor weighs and can be powered by their squad car’s cigarette lighter, Nesci said.

However, unlike the 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. Moreover, the manufacturer will only sell the device to law enforcement agencies.

Other breathalyzer companies provide their source codes and will sell their products to anyone, Nesci said.

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

“The source code would allow us to see what the actual error was when the machine gets the weird readings,” Nesci said.

The Intoxilyzer 8000 has never been tested on a human in Arizona, Nesci said. It’s only been tested on simulators.

In court documents, Deputy Pima County Attorney Robin Schwartz said 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.

Schwartz used electricity as an example.

“No one...needs to see a schematic of wiring to know that when he flips the switch on the wall, the light will come on,” Schwartz said.

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

Nesci said the battle over the source code isn’t just a defense ploy.

“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 producers of the Intoxilyzer 8000, 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 $1.2M 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.

This isn’t the first time Nesci has battled the courts over a breath-testing machine.

In June 1997, the Tucson Police Department stopped using the RBT-IV breath test because it produced unreliable readings.

According to Arizona Daily Star archives, 3000 people charged with DUI and DUI with a blood alcohol content over 0.10 had the latter charge dismissed because the results of their breath tests couldn’t be admitted into court.

Tucson police began using the Intoxilyzer 5000 after dropping the RBT, despite the fact it cost double the amount of the RBT, took up half of a patrol car’s backseat and needed an outside energy source.