Attorney wants DUI cases dismissed
by A.J. Flick on Oct. 09, 2008, under LocalLawyer: Breath-test machine maker defied court order
A Tucson defense attorney wants a judge to dismiss charges against 23 defendants in unrelated alleged drunken-driving cases because the maker of a breath-test machine has defied a court order.
Pima County Superior Court Judge Deborah Bernini ordered Owensboro, Ky.-based CMI Inc. to reveal the computer source code of its Intoxilyzer 8000 by Sept. 30 to attorney James Nesci.
CMI officials dodged a process server delivering the order, Nesci charges in a motion filed Monday. Eventually, the order was served on the company’s secretary and Toby Dyas of Chandler, who trains law enforcement officers for CMI.
In the meantime, Nesci said he discovered that CMI is allegedly operating illegally in Arizona because the company has not registered with the Arizona Corporation Commission.
“It bespeaks an astonishing degree of hubris for a Kentucky corporation that designs and markets a device specifically designed to produce evidence for use against Arizona citizens, in Arizona’s courts, to believe that it can escape the reach of Arizona’s courts by operating in violation of Arizona state law,” Nesci wrote in his motion.
Nesci has requested a hearing for Bernini to decide whether to dismiss charges in the 23 cases or at least suppress the breath-test evidence.
He also wants her to declare that CMI is illegally conducting business here in violation of state law.
Deputy County Attorney Robin Schwartz said she will file a motion opposing Nesci’s requests in the next week.
CMI officials couldn’t be reached for comment.
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.
Nesci and other defense attorneys say CMI and the state must provide the source code so they can check for accuracy of breath tests for alcohol.
