Judge rescinds order for DUI breath-test device codeby A.J. Flick on Jan. 13, 2009, under Local, Special
Says she lacks authority to order firm to reveal info
A Pima County Superior Court judge who ordered a Kentucky firm to divulge the software code of its alcohol breath-test machine has rescinded her order, saying she doesn’t have jurisdiction to rule.
Judge Deborah Bernini said in a ruling issued Monday that CMI Inc. of Owensboro, Ky., isn’t authorized to do business in Arizona.
Therefore, her orders in a local case don’t extend beyond the state’s borders.
Defense attorney James Nesci, who is arguing issues over CMI’s Intoxilyzer 8000 for defendants in 23 unrelated DUI cases, said Monday he wasn’t surprised by Bernini’s statement.
Nesci said Bernini can still order prosecutors to get the source code from CMI. That issue is before the Arizona Court of Appeals, Nesci said.
Phoenix attorney Michael Parrish argued before Bernini last week that the Uniform Act maintains that an order for CMI to give up the source code must come from a Kentucky court.
“Because an Arizona court cannot compel production of documents or things not maintained within this state, the only lawful method that may be utilized to compel CMI to produce the source code in Arizona is compliance with the Uniform Act,” she said in her ruling.
So far, other attorneys who have tried this method have failed to get the Owensboro court, which is named in honor of a relative of CMI’s own attorney, to order CMI to divulge its source code, Nesci said.
Bernini acknowledged CMI’s “refusal to voluntarily produce the source code may jeopardize the prosecution of the consolidated cases.”
“CMI’s claim that the attorneys’ unwillingness to sign a confidentiality agreement is the sole cause for any delay is, at best, a prevarication arguably being aired for consumption by the public and the press,” she wrote.
“The agreement that CMI has insisted be signed has been rejected by more than one court in Arizona, and by courts in Louisiana, Massachusetts, Florida, New Jersey and Minnesota as a violation of an accused’s due process rights,” Bernini wrote.
“The court is further aware that the state has since attempted to obtain the source code pursuant to the Uniform Act, and CMI has successfully convinced the Kentucky court to protect it from any production,” she wrote.
“However, those issues are not being decided this date. The sole issue before the court is whether it had the authority to compel CMI to produce the source code.”
Defense attorneys had asked Bernini to find CMI in contempt of court because it failed to deliver the source code. Because the court had no jurisdiction to issue the order for the source code, Bernini wrote, the contempt sanction “is no longer appropriate.”
In September, Bernini granted a defense request for the source code, citing an Arizona Supreme Court ruling: “All materials relied on by prosecution experts must be available to defense experts, and vice versa.”
Defense attorneys say they’ve found problems traced to CMI Intoxilyzer 8000′s software that can skew results of blood-alcohol content readings.
The CMI device is used by the Tucson Police Department and other state law-enforcement agencies.
In making her ruling, Bernini noted that state’s witnesses agreed “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,” defense attorneys aren’t willing to “accept the state’s assurances,” Bernini wrote.
She 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 percent), a reading of .83 on a machine that is not programmed to measure past .60.”
Several judges in Tucson City and Pima County Consolidated Justice courts have asked for the source code and thrown out breath-test evidence in dozens of cases, resulting in some dismissals.