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Judge: Release alcohol breath test code

Pima County Superior Court Judge Deborah Bernini’s decision echoes municipal ruling

A Pima County Superior Court judge ordered the manufacturer of the alcohol breath test device used in Arizona to give defense attorneys its software code.

Judge Deborah Bernini said Friday that Kentucky-based CMI must provide Tucson defense attorney James Nesci, lead counsel for 23 unrelated DUI cases, an electronic version of its source code for the Intoxilyzer 8000 within 20 days.

Bernini noted in her ruling that CMI has so far refused to divulge its source code despite similar rulings in Louisiana, Massachusetts, Florida and New Jersey.

Earlier this month, Tucson City Court Judge Margarita Bernal dismissed breath test evidence in 19 unrelated cases, saying testimony of CMI President Toby Hall in the cases before Bernini proved to her that the machines were unreliable.

Bernini’s order doesn’t dismiss the breath test evidence in Nesci’s 23 cases.

Bernini noted in her order that CMI is being sued in Minnesota and Florida over the source code and lost a contract with Tennessee after refusing to divulge the code.

Defense attorneys say CMI and the state must provide the source code so they can check for accuracy.

Bernini cited an Arizona Supreme Court ruling that says, “All materials relied on by prosecution experts must be available to defense experts, and vice versa.”

Those materials can include software, according to the ruling.

In making her ruling, Bernini noted that state’s witnesses agreed that “there are defects in the machine and ‘bugs’ in the software that are attributable to the source code.”

While the state’s experts say the defects are “benign,” Bernini wrote, defense attorneys aren’t willing to “accept the state’s assurances.”

Bernini cited evidence that showed the Intoxilyzer 8000 sometimes showed tests “out of tolerance when they were actually within tolerance, measurements of 0.000 when alcohol was admittedly consumed (the machine is programmed so that it cannot measure alcohol concentrations less than .02%), a reading of .83 on a machine that is not programmed to measure past .60″ and more.

The Pima County Attorney’s Office doesn’t have the source code, nor does any law enforcement agency, so Bernini said CMI is responsible for providing the information.

Efforts to reach CMI were unsuccessful.

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