A Pima County Superior Court judge has rescinded her order that a Kentucky firm divulge the software code of its alcohol breath-test machine, citing that she does not have jurisdiction to rule.

In a January 12 ruling, Judge Deborah Bernini said that Owensboro, Ky.-based CMI Inc. is not authorized to do business in Arizona and therefore, her orders in a local case do not extend beyond the borders of the state.

Defense attorney James Nesci, who is arguing issues over the Intoxilyzer 8000 manufactured by CMI in 23 unrelated DUI cases, said that the decision did not come as a surprise to him. He said that Bernini could still order prosecutors to get the source code from CMI; an issue he said is before the Arizona Court of Appeals.

Phoenix attorney Michael Parrish recently argued before Bernini that the Uniform Act maintains that an order for the code to be given up by CMI is required to come from a court in Kentucky. She agreed with his argument.

Nesci said that so far, attempts from other attorneys to get the Owensboro court, which is named in honor of a relative of CMI’s attorney, to order the company to divulge the source code have been met with failure. Bernini acknowledged that the refusal of the company to produce the information could jeopardize the prosecution of the consolidated cases.

CMI has insisted that attorneys sign a confidentiality agreement, citing their reluctance to do so as the sole cause for the delay in turning the source code over. Bernini said that courts in Arizona, Louisiana, Massachusetts, Florida, New Jersey, and Minnesota have rejected the agreement as a violation of the due process rights of an accused.

Defense attorneys had asked that Bernini find CMI in contempt of court due to its failure to deliver the source code. She said the contempt sanction “is no longer appropriate.”

In September, Bernini granted a request from the defense for the source code, citing an Arizona Supreme Court ruling: “All materials relied on by prosecution experts must be available to defense experts, and vice versa.”

Defense attorneys say that they have discovered issues traced to the software of the Intoxilyzer 8000 that can skew the results of blood-alcohol content readings.

The Tucson Police Department and other state law-enforcement agencies utilize the CMI device.

In her ruling, Bernini noted that state’s witnesses agreed that there were defects in the machine and problems with the software attributable to the source code. She said that the state’s experts say the defects are “benign,” but defense attorneys were not willing to accept those assurances.

Bernini cited evidence showing that the device would sometimes show tests that were above the legal limit when they were actually within the limit, measurements of 0.000 when there was admittance of alcohol consumption, and a machine that registered 0.83 despite not being programmed to measure more than 0.60.

Several judges in Tucson City and Pima County Consolidated Justice courts have asked for the source code and tossed out breath-test evidence in several cases, some of which were dismissed.

Bob Battle
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