Hundreds of DUI Cases Hinge on Breath Test Source Code
By Gerri L. Elder
The Pima County, Az. judge who ordered CMI Inc. of Kentucky to release the source code of its breath test machines, the Intoxilyzer 5000 and Intoxilyzer 8000, has rescinded the order. Judge Deborah Bernini's decision has caused many DUI cases to be dismissed, and breath test evidence in hundreds of others to be thrown out.
Phoenix attorney Michael Parrish argued that under the Uniform Act, an order for the company to release its trade secret must originate in a Kentucky court. Bernini agreed and issued a ruling on Jan. 12, saying that CMI is not authorized to do business in Arizona and therefore she lacks jurisdiction to order the release of the source code.
It's not that legal challenges have not been brought in Kentucky. The Tucson Citizen reports that other lawyers have attempted to get an order from the court in Owensburg to compel CMI to release its source code and failed.
CMI has agreed, with specific conditions, to release the source code. Those conditions have not
been met. In order to release the source code for its breath test software, CMI requires that a confidentiality agreement be signed. The agreement to protect the company's trade secrets has been rejected by courts in Arizona, Louisiana, Massachusetts, Florida, New Jersey and Minnesota. By signing the agreement, judges say DUI defendants' rights to due process would be violated.
DUI defense lawyers have alleged that problems with CMI's Intoxilyer 8000 software can produce inaccurate blood alcohol content readings. State officials in Arizona noticed a glitch in the machine about a month after it was implemented, and realized that the machine fails under certain circumstances.
Since the source code has not been released, the breath test evidence in dozens of DUI cases in Arizona has been thrown out and several DUI cases have already been dismissed. Bernini’s order also affected DUI cases in other states.
The Herald Tribune reported that a Manatee County, Florida judge has decided to throw out the breath test evidence in approximately 100 cases. A ruling is expected in Sarasota County that will either diminish the value of breath test evidence or throw it out completely in hundreds more DUI cases.
Judges in both counties have ruled that defendants have the right to examine the evidence against them. This evidence includes the source code for the breath test machine.
Prosecutors have vowed to appeal the rulings as soon as they are filed.