Judge May 'Out' Firm's Secret DUI Code

Tucson Citizen

July 15, 2008

By A.J. Flick

A Pima County Superior Court judge said she favors ordering a Kentucky manufacturer to release the software source code of its alcohol breath machine unless a prosecutor can persuade her otherwise.

Judge Deborah Bernini asked defense attorney James Nesci and Deputy County Attorney Robin W. Schwartz to submit written arguments before she makes a ruling in an action involving 19 defendants.

"If you asked me to rule from the bench today, it would not be in the state's favor," Bernini said Monday after the president of CMI Inc., Toby S. Hall, testified.

Defense attorneys have sought the source code of CMI's Intoxilyzer 8000, saying it's the only way they can test to see whether the machine works properly. Hall testified that the source code is a trade secret.

"When asked what really is different and unique about the machine, Mr. Hall kept talking about the configuration for individual customers," Bernini said. "That's not what concerns the Court."

"It's as simple as 'Is the defense entitled to have this?'" Bernini said. "It does not mean it's admissible in court, but that's definitely the direction I'm headed in, especially after today's testimony."

In recent months, breath tests in more than 100 DUI cases in Tucson City Court have been thrown out after CMI refused to disclose the source code, Nesci said. Many of those cases have been dismissed as a result, he added.

The states of Minnesota and Florida are suing CMI after it refused to divulge the source codes by court order.

Bernini's ruling is expected sometime in September.

Hall testified that CMI has written a newer version of the software that Arizona's Intoxilyzer machines use, to correct errors, but that version isn't loaded into any machines in use.

"When is (the new version) going to be in use?" Nesci asked.

"Whenever the state puts it into use," Hall testified.