The Arizona Court of Appeals in Tucson has overturned a Pima County Superior Court judge's ruling ordering prosecutors to give defense attorneys the software that powers a breath-testing machine used on suspected drunken drivers.
In an opinion released Tuesday, the panel of judges said Judge Deborah Bernini erred when she stated prosecutors have "better access" to the software for the Intoxilyzer 8000 than defense attorneys do.
The judges wrote they found no evidence to support the idea that the state has better access to the software than defense attorneys.
For the past several months, defense attorneys throughout the county have been arguing that they should be given the "source code," or 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.)
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The defense attorneys maintain the issue is a constitutional one; defendants have the right to cross-examine and confront their accusers.
Prosecutors maintained that experts have other ways to determine if the test results are reliable. They also say the source code is a trade secret and shouldn't be disclosed.
Last September, Bernini ruled that the source code is not a trade secret and that the defense attorneys have a "substantial need" for the software.
The judge noted the president of CMI, the company that manufactures the machine, testified the Intoxilyzer 8000 is not patented, and neither is its 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.
Bernini later rescinded her order, noting she has no jurisdiction over CMI, which is based in Kentucky. However, the judge ruled prosecutors had better access to the software and she ordered them to get it and to turn it over.
The Pima County Attorney's Office asked the Arizona Court of Appeals to address the issue.
Nesci, who is currently in Venice, Italy, wrote in an e-mail he was pleased with the court's ruling.
"The ruling was a clear victory for the defense because it left the 'substantial-need' ruling intact. This means that the defense has a substantial need for the source code but no way to get the material. The only logical remedy for the due-process violation is suppression," he wrote.
Prosecutor Bruce Chalk, who heads the vehicular-crime unit of the Pima County Attorney's Office, was also pleased with the ruling, however.
The higher court ruled prosecutors don't have better access to the code, Chalk said.
As far as the "substantial need" issue, Chalk said, the higher court didn't address the issue and it will likely end up before the Court of Appeals at some point in the future.
At this point, Bernini has three options, Chalk said.
The judge can suppress the breath tests in the 23 felony DUI cases before her, forcing prosecutors to proceed without them. Or she can allow prosecutors to use the breath tests. Or she can dismiss the cases.
No matter what option Bernini chooses, an appeal will likely be filed, Chalk said.
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.
