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and Intoxilyzer 8000, has rescinded the order.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.
