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DUI lawyer: Judge may have to toss breath tests results

Citizen Staff Writer



A Tucson DUI defense attorney says an appellate ruling on the Intoxilyzer 8000 source code controversy may prompt a judge to throw out alcohol breath test results in at least two dozen cases.

Judge Deborah Bernini ordered CMI Inc. of Owensboro, Ky., to hand over the device’s software source code, but reversed her ruling when its maker contested her authority to issue the order.

The Pima County Superior Court judge then ordered prosecutors to get the source code from CMI.

The Arizona Court of Appeals ruling, issued Thursday, says prosecutors aren’t in any better position to get the code.

Defense attorney James Nesci said the appellate court didn’t say that the source code wasn’t vital to defendants in 23 unrelated cases.

“This is significant because now the defendants have a substantial need for the material and no way to get it,” Nesci said. “This results in a constitutional due-process violation.

“The government’s attorneys and CMI worked as a team to keep the source code out of the hands of the defendants – and they did so – but they painted themselves into a corner. The only remedy is to suppress the test results.”

Deputy County Attorney Robin Schwartz said she couldn’t predict what Bernini will do.

Bernini could decide not to allow the state to proceed with all of the evidence, Schwartz said. Or she could impose sanctions that could throw out breath tests or dismiss the cases.

“In either case (of a sanction), we would almost certainly go back to the Court of Appeals to clarify our position,” Schwartz said.

The appellate court ruling was issued as a memorandum, meaning that it doesn’t apply to other cases.

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