Faulty DUI Breath Test Machine: No Immediate Solution on the Horizon
The Intoxilyzer 8000, a DUI breath test machine used throughout Arizona has been shown to deliver false readings and has resulted in several DUI case dismissals. According to the Tucson Citizen, Judge Bernini from Pima County Superior Courts, initially ordered the Kentucky based manufacturer, CMI, to divulge the source code and the root of the software problems related to the faulty test readings. Her attempt to get to the source of the problem, however, has proven unsuccessful.
Unfortunately, Judge Bernini realized she did not have jurisdiction to place such an order on a business based in Kentucky who does not “do business” in Arizona and rescinded her order. Because the order was not legal, the court has no leverage to hold the manufacturer in contempt to failing to produce the requested source code.
If faulty DUI tests are being attributed to the Intoxilyzer why do agencies continue to use them? Simple, the answer is money. A department typically can’t afford to replace equipment like this at the drop of a hat. While some judges are throwing out breath test evidence retrieved from these machines, the police continue to use them because there is no other option.
It may be possible for prosecution to obtain the code from CMI, however, CMI has yet to willingly cooperate with any court. They require the signing of a confidentiality agreement and the company states this is the only thing standing in the way of the courts receiving the information they want. Judge Bernini, however, sees this contract as simply a waste of time and suggests that it is being used by CMI to skew the truth and appeal to the press and consumers.
Currently the Arizona Court of Appeals is considering whether the prosecution is barred from requesting the source code by the same jurisdiction laws that stopped Judge Bernini.
If police agencies and prosecutors build their cases entirely on breath test evidence, which they often do, they may want to reconsider their approach when the machinery begins showing signs of unreliability. While these defects may work in favor of those accused of DUI in Arizona, the state is wasting money bringing cases to court that it will potentially lose due to a fixable problem.
Because the company is so reluctant to share information, one faulty test can open the door to many more dismissals.
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