City judge tosses alcohol breath tests in 49 casesby A.J. Flick on May. 20, 2008, under Local, Special
A City Court judge has tossed out alcohol breath tests in 49 DUI cases in a move that could affect dozens more in Tucson, attorneys said.
The ruling also could affect every alcohol breath test conducted in the state since Dec. 1, 2006, when Arizona adopted the Intoxilyzer 8000 machine made by CMI.
Judge Thomas Berning issued a ruling late last week that because the company that makes the breath test machine hasn’t made its inner workings available to the defense, the breath tests are inadmissable.
“This could be huge,” said James Nesci, one of the defense attorneys in the cases and author of a new book, “How to Beat a DUI.”
The ruling doesn’t dismiss the cases entirely, just the breath tests.
Nesci said there are 50 to 70 pending cases before other judges that were waiting for Berning’s ruling.
Under Berning’s ruling, made Thursday, defense attorneys asked for the Intoxilyzer 8000′s source code used to create the machine’s software.
CMI agreed to make the source code available as long as defense attorneys agreed not to reveal it publicly, which defense attorneys agreed to.
“Despite this,” Berning wrote in his ruling, “neither the state nor CMI has released the source code.”
Instead, Berning wrote, CMI came back with a counteroffer with “more onerous terms” that defense attorneys said were “ethically problematic.”
Last year, City Court Judge Jeffrey A. Klotz ordered CMI to release the source code in 18 other cases.
“It is clear that an open examination of the source codes, by all interested parties, including the state, defendants and CMI, would result in a better product, more reliable and accurate results and ultimately more just results in criminal prosecutions,” Klotz ruled.
CMI refused to release the code.
Prosecutors will appeal Berning’s ruling within the next 14 days, said Deputy City Attorney Laura Brynwood. She couldn’t comment further because the cases are pending.
Sgt. Mark Robinson, a police spokesman, said the department is aware of Berning’s ruling and will wait for the results of the appeal to decide whether to continue using the Intoxilyzer 8000.
“Our current policy and procedures with the 8000 remain in place,” Robinson said.
A CMI official didn’t return a call seeking comment.