Thousands of Tucson-area DUI cases may get boot

I’ve worked with both of these attor­neys before in the past. They are cer­tainly sharp when it comes to chal­leng­ing the 8000.

Original arti­cle posted here.

Intoxilyzer 8000 may be ruled unre­li­able
A.J. FLICK
Published: 11.10.2008
A dozen years ago, 3,000 drunken-driving pros­e­cu­tions in Tucson were dis­missed in one day — about 5,000 cases within a few months — because the breath-test device that said the dri­vers were drunk was deemed unre­li­able.
Those num­bers could eas­ily be sur­passed if one of the cur­rent alco­hol detec­tors in Arizona, the Intoxilyzer 8000, is found to be unre­li­able, a lead­ing dri­ving under the influ­ence defense attor­ney said.
“This is going to be huge,” said Tucson lawyer James Nesci, because the cur­rent machine is widely used statewide as opposed to the older device, which was used in Tucson and at a smaller agency.
In 2007 and so far this year, Tucson police have made 5,963 DUI arrests, though not all of those resulted from using the Intoxilyzer. Tucson police started using the 8000 model Dec. 1, 2006.
The statewide DUI Taskforce, which does spe­cial enforce­ment work around the state dur­ing hol­i­day week­ends, made nearly 9,000 DUI arrests in 2007.
Most Arizona law-enforcement agen­cies use the Intoxilyzer 8000, experts said. Neither the state Department of Public Safety nor the Governor’s Office of Highway Safety claimed to know how many agen­cies use the device; spokes­men at each agency referred a reporter to the other agency.
According to CMI Inc. doc­u­ments filed by pros­e­cu­tors, eight states, three police depart­ments and one other gov­ern­men­tal agency use the Intoxilyzer 8000. It is approved for use in six other states and three other gov­ern­men­tal agen­cies. CMI is the Owensboro, Ky., maker of the Intoxilyzer 8000,
Nesci said thou­sands of DUI con­vic­tions could be over­turned on appeal if the device is found faulty. Nesci’s work in the 1990s led to the pre­vi­ous dis­missals.
Nesci has donated his time to chal­lenge the reli­a­bil­ity of the Intoxilyzer 8000 alco­hol detec­tor on behalf of 23 defen­dants in sep­a­rate Pima County Superior Court cases.
Judge Deborah Bernini gave CMI Inc. until Monday to turn over the soft­ware source code in an elec­tronic form.
Despite court orders across the coun­try, CMI has declined to divulge the code, which defense attor­neys say will show that the device is error-prone. The com­pany has racked up more than $1 mil­lion in fines by refus­ing to com­ply with a sim­i­lar Florida court order, records show.
CMI President Toby Hall didn’t return phone calls for com­ment. When Bernini first ordered CMI to release the code, Nesci said a process server couldn’t get Hall to accept the court order.
Last month, Bernini told pros­e­cu­tors to get the source code from CMI.
Deputy County Attorney Robin Schwartz told Bernini that she didn’t think the state could force CMI to reveal the code.
Bernini also set a Nov. 24 hear­ing for Hall to appear and explain why she shouldn’t hold him and CMI in con­tempt for refus­ing to com­ply with her orders.
CMI has said it will give up the code, on paper, if the recip­i­ent signs a nondis­clo­sure agree­ment, which defense attor­neys refuse to do.
“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 said.
Bernini denied a stay so pros­e­cu­tors could appeal her order that they obtain the code, but Berkman said the office will file a spe­cial action with the Arizona Court of Appeals in the hopes Bernini’s order will be over­turned.
While Bernini expressed con­cern why CMI was not coop­er­at­ing, “from an eth­i­cal stand­point, we’re not con­cerned,” Berkman said.
Dozens of DUI cases have been thrown out in local courts because of CMI’s refusal to hand over the source code. Several city court judges and county jus­tices of the peace have tossed out the breath-test evi­dence, which in turn led to pros­e­cu­tors dis­miss­ing the charges.
Recent events echo those in the mid-1990s when defense attor­neys chal­lenged the integrity of the RBT IV breath test machine, man­u­fac­tured by Intoximeters Inc., based in St. Louis. Prosecutors even­tu­ally agreed that the device was faulty, which led to 3,000 cases being dis­missed at once in 1997 and the total num­ber thrown out about 5,000, Nesci said.
“But this is going to be big­ger than the RBT IV,” which was only used in Tucson and by a few other agen­cies statewide, Nesci said.
The Tucson Police Department declined to com­ment for this arti­cle because the Intoxilyzer 8000 case is being lit­i­gated.
While the Pima County Sheriff’s Department chose to rely on field blood tests to deter­mine blood alco­hol con­tent, Tucson police replaced the RBT IV with an older ver­sion of the 8000, CMI’s Intoxilyzer 5000, which had been shelved.
When the Intoxilyzer 8000 came out, Nesci said, cops every­where liked it because it was lighter than the clunky 5000 model, which wasn’t designed to be mobile. The 8000 could be plugged into the patrol car’s dash, unlike the 5000, which was hooked to a con­verter or gen­er­a­tor in the car’s trunk.
Defense attor­neys are curi­ous, Nesci said, about the ver­sions of soft­ware CMI gave DPS for test­ing and for release on the streets.
CMI cus­tomizes soft­ware codes for each state, depend­ing on liquor laws and spec­i­fi­ca­tions for breath test­ing.
DPS tested ver­sion 8000.00, Nesci said.
“Once that was approved, those machines left the state,” Nesci said.
The ver­sion first put on the streets was 8000.44, Nesci said.
“We want to know how ver­sions .41, .42. and .43 were dif­fer­ent from the one approved,” Nesci said.
“Then they switched to ver­sion .45 almost imme­di­ately,” Nesci said.
The ver­sion now used is .46.
“Now we have a .47 sit­ting in a crime lab in Phoenix,” Nesci said.
CMI President Hall tes­ti­fied in another local case that there were prob­lems with the .46 ver­sion that were cor­rected, Nesci said.
“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,” Nesci said.
Bernini seems to be per­plexed as to why CMI hasn’t been more forth­com­ing, at least as far as the cases before her are con­cerned.
“Every lawyer in this room should be con­cerned about CMI’s unwill­ing­ness to fol­low the court’s order,” the judge said last month.
Nesci and other defense attor­neys see CMI’s obsti­nacy as a defen­sive cover-up.
Hall said pre­vi­ously that CMI is pro­tect­ing trade secrets.
“Their refusal to dis­close the soft­ware is kind of a mys­tery to me,” said John Fusco, pres­i­dent of CMI rival National Patent Analytical Systems of Mansfield, Ohio.
“Saying it’s a trade secret doesn’t get me any­where,” Fusco said.
“All soft­ware, for the most part, is very hard­ware spe­cific,” Fusco said. “Their soft­ware really can’t be used unless another man­u­fac­turer is will­ing to dupli­cate their hard­ware.“
Fusco, who once was a sales rep­re­sen­ta­tive for CMI, said the Intoxilyzer’s tech­nol­ogy isn’t as novel as the com­pany touts it to be.
“It’s been around for 30 years,” Fusco said.
Fusco said he’s often asked for soft­ware to his DataMaster alco­hol breath detec­tor.
“It’s a real pain,” Fusco said.
But Fusco com­plies and even con­ducts sem­i­nars twice a year for defense attor­neys want­ing to know more about his prod­uct.
When asked for the soft­ware, Fusco sends a let­ter detail­ing the specifics, which includes the code in dig­i­tal for­mat for $350, which cov­ers ser­vices to repro­duce the com­pact disc.
Fusco said he rarely hears back from defense attor­neys.
“What they want is for me to say ‘no,’ ” Fusco said.
Fusco said the costs of expert analy­sis of the soft­ware, upward of $100,000, is often too pro­hib­i­tive for defense attor­neys.
If there is a legit­i­mate prob­lem with the code, Fusco said, NPAS will fix it.
NPAS also reviews results of out­side analy­sis to ensure truth­ful tes­ti­mony in court cases, he said.
CMI has told defense attor­neys it will pro­vide its source code on paper but Fusco said it is “com­pletely use­less in hard­back.“
Nesci and law part­ner Joseph P. St. Louis said the Pima County cases will hold up on appeal, unlike cases in other states.
“I don’t think any other state has dupli­cated what we’ve seen here,” St. Louis said. “All the judges (here) are say­ing this needs to be pro­duced or there will be con­se­quences.
“All the other states are watch­ing us to see what hap­pens next.”