In an important case for DUI defense lawyers, a judge in Arizona ruled that the manufacturers of the Intoxilyzer 8000 breath test machine must turn over the systems source code to defense attorneys.  The results code have a significant impact on possibly hundreds pending cases where this evidence is used.

Source code, or computer code, is the software that provides instructions about how a system operates and makes calculations. Litigation over access to breath test machine source code has been active in many other states, including Florida, Massachusetts, Minnesota, New Jersey, and Tennessee.

The decision is based on the rights of a defendant to confront his accuser. Since these breath test machines are essentially a “black box” that spits out a magic number that can convict a person of a crime, it is reasonable for the defense to be able to understand exactly how these devices calculate this number.

The judge also determined that there were no trade secrecy issues, since the machine itself is not patented, and the source code was not copyrighted. CMI, Inc has until October 27th to turn over the source code, however in similar court battles in other states, the company has consistently refused to do so, even under the threat of fines and sanctions from the court.

The attorney arguing on behalf of the state seemed to imply that the fact that the machines are accurate is somehow self-evident, comparing it to “turning on a light switch”, and that it is easy to see if it works. This is a silly comparison;  with a light switch, you know exactly what and how you are measuring a positive reading.

Anyone who has ever worked on, developed, or tested hardware or software systems understands that thorough testing is absolutely necessary for any complex systems. Results under different user conditions can often be unpredictable and surprising. That’s why technology companies have huge testing departments, that run software and hardware through rigorous testing under a wide variety of conditions, and compares results to known benchmarks.

Attorney James Nesci, the lead counsel on the case added that the machine has “never been tested on humans in Arizona, only simulations”. In addition, CMI, Inc., the manufacturer of the Intoxilyzer, refuses to even sell the device to anyone but law enforcement agencies. It has been otherwise imposible for defense lawyers to do even cursory analysis and independent testing on these machines.

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If you are facing a drunk driving charge in Arizona, please call our attorneys immediately for a free case evaluation and legal consultation.

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Further Reading on Breathalyzer Source Code issues and litigation

Arizona Daily Star

Tuscon Citizen (and here).

Slashdot

Ars Technica

Lawrence Taylor

Over a years worth of breathalyzer records from the Santan and Gold Canyon areas have apparently been lost by the Pinal Count Sherriff’s office, resulting in at least 4 DUI cases being dismissed.

It is a requirement that the police department is able to verify that the Intoxilyzer 8000 breath test machines have received the proper quality assurance to establish their validity in court.

With those records missing, DUI cases that rely heavily or entirely on a breath test result as evidence in court have to be dismissed. While it’s an obvious mistake by the police, it is a very minimal legal standard that the machines be certified.

Arizona DUI defense lawyers will tell you that you can’t cross examine a machine, and it can be very difficult to establish that these breath test machines have a number of flaws that can result in false positives, based on people’s stomach disorders (GERD), diet issues, and many other issues with their usage. Juries and judges tend to believe the magical number regardless of the questions raised by defense counsel.

Having minimal maintenance records available and establishes is an incredibly low standard to meet, so it is reasonable that these cases should be dismissed.

All citizens should be afraid of a magical machine that can send you to jail, but essentially can’t be challenged or questioned. Defense lawyers are not allowed to run any independent tests on breath test machines to establish their accuracy and biases, with true scientific detachment. And it most states, attorneys have been denied access to the source code and information about the inner workings of the machine to understand exactly how it works, and what problems could have been overlooked.

If you are charged with a DUI in Arizona, we can help. Please contact our attorneys for a free consultation and case evaluation on any Arizona DUI arrest. Find out what we can do for you, with no obligation.