Alcohol breath tests in 49 driving under the influence cases have been tossed out by a judge in Tucson, Arizona according to the  A defense attorney for some defendants in Arizona  says the ruling could have widespread implications. The ruling could also have widespread implications in Virginia, which uses an older model of the Intoxilyzer machine used in Arizona. 

According to the ruling by City Court Judge Thomas Berning, the breath tests are inadmissable due to the manufacturer of the machine not making the inner workings available to the defense. The company, CMI Inc. of Kentucky, has refused to reveal its source codes in any state. They are even being sued by the State of Minnesota for breach of contract for refusing to reveal the source code in that state even when ordered to do so by a judge!

The Intoxilyzer 5000 breath machines used in Virginia are all 10 to 12 years old and CMI even has a weaker argument in Virginia for not revealing the "trade secrets" of their source code since the machine is no longer being manufactured and Virgnia has awarded its next contract for breath machines to a different company. The question that should be asked for anyone with a pending DUI in Virginia is what does the company have to hide? In New Jersey, a different manufacturer of a different breath machine complied with the Courts request to reveal its source code and defense software and other technical experts found that the software did not meet government standards. Thus, in New Jersey, the source code was found to be not even "close enough for government work!"

According to James Nesci, a defense attorney for one of the cases, 50 to 70 pending cases were awaiting the ruling from Berning. The cases aren't entirely dismissed by the ruling, only the breath tests.

According to the Tuscon Citizen, every alcohol breath test conducted in Arizona since December 1, 2006, which the Intoxilizer 8000 machine made by CMI was adopted by the state, could be potentially be affected.

Bob Battle
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100% of my practice is devoted to serious traffic defense and criminal litigation in state and federal courts
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