Judge Favors Revealing Breathalyzer Source Code as Manufacturer Keeps Stalling


DUI lawyers knew that the tide would turn after a Minnesota judge not only ordered a breathalyzer manufacturer to release the source code for its breathalyzer product, but began throwing out DUI cases until the company complied. The manufacturer of the breathalyzer, CMI, stood its ground, however, providing new opportunity for legal challenges of breath tests.

A judge in Pima County, Arizona has now followed suit and will likely order the release of breathalyzer source code from CMI, a Kentucky manufacturer of breath test machines. Arizona DUI attorneys must submit written arguments before she makes a final ruling, but Judge Deborah Bernini favors the disclosure in the case.

The breathalyzer in question is the CMI Intoxilyzer 8000, which is a very common breath test machine used in the police departments across the country. The Intoxilyzer series has been at the heart of similar disputes in Minnesota and Florida, previously, and in both cases, CMI has been ordered by district judges to turn over the source code. In both cases, CMI refused to comply, causing hundreds of DUI cases to be thrown out of court.

The arguments trotted out on both sides were similar to those made in the Minnesota and Florida cases: the DUI attorneys for the plaintiff argued that without CMI revealing the source code, they could not adequately prepare a defense to challenge the way the breath test functions; CMI, on the other hand, continued its argument that the breathalyzer source code is a trade secret protected by a patent. Revealing it publicly, they argue, could ruin business in the field by opening up their products to copy by competitors.

But the judge wasn't buying CMI's argument, largely because she didn't hear them make a legitimate point. Bernini was quoted in the Tucson Citizen as saying, "When asked what really is different and unique about the machine, [CMI President Toby S.] Hall kept talking about the configuration for individual customers. That's not what concerns the court."

The stalling done by CMI has already caused hundreds of breath tests to be thrown out of the Pima County court system, and many cases along with them, just as their stalling did in other states.

Of course, the "trade secret" argument may be to some degree legitimate, but perhaps CMI just doesn't want to be embarrassed by what experts might find when they look into the coding. When an independent lab dug into the source code of the Draeger AlcoTest 7110 MKIII-C for a New Jersey Supreme Court case, it found that the code had been put together piecemeal over years, leaving thousands of errors in the coding!

To top it all off, it was written on a computer chip similar to that used in Atari game systems, and done with coding practices that are more than 30 years out of date. The lab concluded, "There is no doubt that the Supreme Court should declare this machine to be unreliable."

Perhaps CMI is hiding similar technology, or perhaps not. In any case, if they keep stalling, it might take even more severe legal action to find out.

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