Arizona appeals court decision part of a tangle of arguments
An Arizona appellate court skirted a big-picture issue snagging numerous drunken-driving cases as it issued a narrow ruling that overturned a judge’s order requiring prosecutors to obtain a breath-testing machine’s computer code and provide it to defense attorneys.
A Tucson-based panel of Court of Appeals judges ruled that Judge Deborah Bernini of Pima County Superior Court shouldn’t have issued the order because law enforcement officials did not have the “source code” for the Intoxilyzer 8000 machine and had no way to get it from the out-of-state manufacturer.
The next step in the case will likely be for defense lawyers to ask Bernini to prohibit use of breath-test results from the Intoxilyzer 8000, Tucson defense attorney Joseph P. St. Louis said.
Meanwhile, the Court of Appeals’ ruling Tuesday leaves a tangle of rulings by Superior Court and municipal judges, some of which prohibit use of the evidence while others that permit it, said Deputy Pima County Attorney Jacob Lines.
“It really depends on which judge you’re in front of,” Line said. “It’s sort of been a mess.”
In cases where judges don’t allow breath-test results to be used, prosecutors still press many drunken-driving cases by using evidence that includes testimony from police about drivers’ performance behind the wheel and in field-sobriety tests, St. Louis said.
The Pima County Attorney’s Office drew support in the Court of Appeals case from the Arizona Attorney General’s Office and prosecution agencies for jurisdictions that included Phoenix, Tempe, Tucson and Yavapai County.
The Arizona Department of Public Safety has 250 of the Intoxilyzer 8000 machines in use statewide, spokesman Bart Graves said. Municipal police using the machines include departments in Phoenix and Tucson, officials said.
The manufacturer, CMI Inc. of Owensboro, Ky., argued that the code is a trade secret, and CMI has resisted efforts in Arizona and Kentucky courts to require it to disclose the code in electronic form without it being subject to nondisclosure agreements.
Defense attorneys contend they need the code to challenge the accuracy and reliability of the machine.
“It’s not being produced so the only fair thing to do is to suppress the evidence that’s obtained as a result of that,” St. Louis said. “We don’t make people go to trial without giving them the material that they need to defend themselves.”
CMI says its Intoxilyzer 8000 machine is reliable, and Lines and Nathan Watts, a Phoenix municipal prosecutor, said the demands for the code amount to fishing expeditions by defense lawyers.
“They presented arguments about what they think possibly could exist or problems that could be possibly be out there but they haven’t shown that those problems do exist, let alone do exist in their particular cases,” Lines said.
The Court of Appeals ruling said Bernini abused her discretion in ordering prosecutors to obtain and disclose the code, but the appellate panel said it didn’t have to decide whether Bernini was right to rule that defendants had a “substantial need” for the code. Attorneys said that leaves that fundamental issue undecided, but St. Louis acknowledged the panel’s statement that prosecutors’ “persuasively” challenged the trial judge on the issue “might signal trouble ahead for us.”