TUCSON, AZ- An earlier ruling that allowed breath test evidence in 19 alleged driving under the influence cases has been reversed by a Tucson, Arizona City Court judge. The evidence will now not be allowed at trial.

On September 8, Judge Margarita Bernal ruled that her mind had been changed by testimony in an unrelated Superior Court case.

Bernal cited the testimony of Toby Hall, president of CMI, the company based out of Owensboro Kentucky which manufactures the Intoxilyzer 8000 machines and software that the state of Arizona uses. According to Bernal, his testimony raised “anomalies, errors, and issues” that could have an effect on the reliability and credibility of the machines.

Defense attorneys in cases before Bernal and other Pima County, Arizona judges argued that the source code for the Intoxilyzer 8000 must be provided by CMI and the state in order to check for accuracy. Bernal agreed, saying that the defense’s right to cross examine the evidence is “fundamental.” She ruled that the breath test evidence would not be allowed if the source code was not provided.

Over the past several months, there have been more than 100 DUI cases in Tucson City Court that have seen breath test evidence be thrown out because CMI refused to disclose the source code. As a result, the majority of those cases were dismissed.

If you have a pending DUI in Arizona and have taken a breath test, contact Phoenix Arizona DUI Lawyer Ted Agnick to see if the source code defense is an issue in your case.

The breath machine used in Virginia is the Intoxilyzer 5000, a previous, inferior version of the Intoxilyzer 8000. Richmond Virginia DUI Lawyer Bob Battle has filed a motion asking the prosecution to be required to reveal the source code used in the Intoxilyzer 5000, which is set to be heard in late September 2008. This ruling will affect every DUI breath test administered in the entire state. In the Tucson case the president of CMI testified that the 8000 has software that has been corrected over previous versions of the machine. Well, Virginia uses that previous version and Bob Battle is fighting to require that the software problems be revealed.



Bob Battle
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