Breath Test Controversy Threatens DUI Cases

Tuesday November 18, 2008

Questions about the reliability of a popular breath test machine could put thousands of outstanding drunken driving cases in jeopardy while the manufacturer of the Intoxilyzer 8000 refuses to turn over the software code that runs the machine to court officials. An estimated 5,963 DUI cases in Tucson alone are at risk of being thrown out of court.

The machine is used in eight states and approved for use in six others.

Defense attorney James Nesci, who is heading up the challenge to the Intoxilyzer 8000 on behalf of 23 DUI defendants in Tucson, is trying to get the manufacturer of the machine to release the software codes so that he can compare current versions to previous versions to determine what kind of changes had to be made.

Thus far the manufacturer, CMI, Inc. of Owensboro, Kentucky, has refused to turn over its software in digital form. The company says it will turn over a paper copy of the code, but only if the recipient signs a nondisclosure agreement. Defense attorneys have refuse to sign the agreement.

Software Has Been Tested

In Florida, CMI has run up fines in excess of $1 million for refusing to abide by a court order there to turn over the Intoxilyzer 8000 code.

Arizona prosecutors insist that the machine is reliable.

"The software has been tested by (the Arizona Department of Public Safety) and the federal government a bazillion times, all kinds of tests, and it's been found to be fine," Chief Criminal Deputy County Attorney David Berkman told The Tuscon Citizen.

But Nesci says CMI officials have testified in other states that there were problems with previous versions.

The version tested by the DPS was 8000.00, Nesci said. The current version is 8000.46.

"You'd think if there were problems with software that were big enough to have been corrected, they would need to tell the people who tested the defective software," Nesci said. "But nobody was ever notified there were problems."

Ordered to Appear in Court

Judge Deborah Bernini has ordered CMI President Toby Hall to appear before her Nov. 24 and explain why she shouldn't hold him and CMI in contempt. Hall has agreed to turn over the code in written form, but defense attorneys say that would be useless for purposes of testing.

In the meantime, judges are already throwing out evidence in DUI cases produced by the Intoxilyzer 8000, causing prosecutors to drop the charges. Thousands of other cases could also be thrown out.

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