Defense attorneys are neither entitled to the source code for the breath-testing machine commonly used in DUI cases nor to its software, the Arizona Court of Appeals based in Tucson ruled this week.
For more than a year, defense attorneys throughout the county have been arguing they should be given the "source code," and 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.)
Anomalies have arisen, but without having access to the inner-workings of the machine, defense attorneys and their expert witnesses are unable to determine the extent of them, said Attorney James Nesci .
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Judge Deborah Bernini of Pima County Superior Court ordered the Pima County Attorney's Office to give the defense attorneys the source code in October 2008, but the Arizona Court of Appeals overturned her ruling in April.
The case went back to the Court of Appeals because Bernini did not believe the upper court's ruling pertained to the machine's software. On Tuesday the court ruled prosecutors don't have to hand over either the source code or the software.
Even if defense attorneys are correct that there have been anomalies, they have failed to prove those anomalies affect the reliability of the tests, Presiding Judge Philip Espinosa wrote.
"We are very pleased with the decision," said David Berkman, Pima County's chief criminal deputy county attorney. "We thought the issue was cleared up in the previous ruling by the court. This decision is going to impact thousands of cases across the state."
"This was just another way for people caught driving drunk to attack the evidence because the numbers don't lie," Berkman said.
Courts throughout the state have been waiting to see the end result of Pima County's battle with the defense attorneys, Berkman said. The ruling affects between 900 and 1,000 pending cases in Tucson City Court alone.
Nesci and Berkman disagreed as to whether the higher court established that defense attorneys have a "substantial need" for the source code.
Berkman said the court did not find they do; Nesci said it did.
Nesci said he and other defense attorneys 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.
"Everyone has a right to know how the machine works," Nesci said. "The state has outsourced its due process obligations to a privately held, for-profit, foreign corporation."
By foreign corporation, Nesci said he was referring to the fact the manufacturer of the machine is based in Kentucky.
Last year, Bernini ordered the manufacturer, CMI, to turn over the source code to Nesci.
Bernini later rescinded her order, noting she has no jurisdiction over CMI. It was then that the judge ruled prosecutors had better access to the software and she ordered them to get it and to turn it over.
Six other states have been battling CMI over the software: Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey.
The machine failed to meet precision and accuracy testing in Tennessee, Nesci said, so law-enforcement agencies there are prohibited from using it.
Did You Know
The U.S. Supreme Court decided last week to let stand a Virginia court's ruling that says police officers must personally observe erratic driving before stopping a suspected drunken driver.
In December 2005, the Richmond Police Department pulled over a driver after receiving a 911 call from a motorist who suspected the man was driving while intoxicated.
The officer detected a strong odor of alcohol on the man's breath and noticed his speech was slurred. The man, who had prior DUI convictions, failed field sobriety tests and was arrested and later convicted.
The Virginia Supreme Court voted 4-3 to throw out the conviction. The state high court said the anonymous tip did not provide enough evidence of criminal wrongdoing to overcome Fourth Amendment protections against unreasonable searches and seizures.
The police officer must personally observe criminal activity before an investigative stop is justified, the Virginia court ruled.
The Virginia Attorney General's Office appealed the decision to the U.S. Supreme Court, urging the high court to overturn the opinion and make clear that in cases involving suspected drunk drivers, police officers are justified in conducting a brief traffic stop.
The Supreme Court turned down the appeal without comment. Chief Justice John Roberts filed a dissent, joined by Justice Antonin Scalia.
"It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check," Roberts wrote in his dissent.
