Monday, November 10, 2008

All States watching Intoxilyzer 8000 litigation in Arizona / San Diego uses the 8000 in DUI cases

California DUI criminal defense attorneys at www.SanDiegoduilawyer.com/blog and California drunk driving criminal defense lawyers at www.SanDiegoDrunkDrivingAttorney.net/articles tell about a dozen years ago, 3,000 drunken-driving prosecutions in Tucson were dismissed in one day - about 5,000 cases within a few months - because the breath-test device that said the drivers were drunk was deemed unreliable.

Those numbers could easily be surpassed if one of the current alcohol detectors in Arizona, the Intoxilyzer 8000, is found to be unreliable, a leading driving under the influence defense attorney said.

"This is going to be huge," said Tucson lawyer James Nesci, because the current machine is widely used statewide as opposed to the older device, which was used in Tucson and at a smaller agency.

In 2007 and so far this year, Tucson police have made 5,963 DUI arrests, though not all of those resulted from using the Intoxilyzer. Tucson police started using the 8000 model Dec. 1, 2006.

The statewide DUI Taskforce, which does special enforcement work around the state during holiday weekends, made nearly 9,000 DUI arrests in 2007.

Most Arizona law-enforcement agencies use the Intoxilyzer 8000, experts said. Neither the state Department of Public Safety nor the Governor's Office of Highway Safety claimed to know how many agencies use the device; spokesmen at each agency referred a reporter to the other agency.

According to CMI Inc. documents filed by prosecutors, eight states, three police departments and one other governmental agency use the Intoxilyzer 8000. It is approved for use in six other states and three other governmental agencies. CMI is the Owensboro, Ky., maker of the Intoxilyzer 8000,

Nesci said thousands of DUI convictions could be overturned on appeal if the device is found faulty. Nesci's work in the 1990s led to the previous dismissals.

Nesci has donated his time to challenge the reliability of the Intoxilyzer 8000 alcohol detector on behalf of 23 defendants in separate Pima County Superior Court cases.

Judge Deborah Bernini gave CMI Inc. until Monday to turn over the software source code in an electronic form.

Despite court orders across the country, CMI has declined to divulge the code, which defense attorneys say will show that the device is error-prone. The company has racked up more than $1 million in fines by refusing to comply with a similar Florida court order, records show.

CMI President Toby Hall didn't return phone calls for comment. When Bernini first ordered CMI to release the code, Nesci said a process server couldn't get Hall to accept the court order.

Last month, Bernini told prosecutors to get the source code from CMI.

Deputy County Attorney Robin Schwartz told Bernini that she didn't think the state could force CMI to reveal the code.

Bernini also set a Nov. 24 hearing for Hall to appear and explain why she shouldn't hold him and CMI in contempt for refusing to comply with her orders.

CMI has said it will give up the code, on paper, if the recipient signs a nondisclosure agreement, which defense attorneys refuse to do.

"The software has been tested by (the Arizona Department of Public Safety) and the federal government a bazillion times, all kinds of tests, and it's been found to be fine," Chief Criminal Deputy County Attorney David Berkman said.

Bernini denied a stay so prosecutors could appeal her order that they obtain the code, but Berkman said the office will file a special action with the Arizona Court of Appeals in the hopes Bernini's order will be overturned.

While Bernini expressed concern why CMI was not cooperating, "from an ethical standpoint, we're not concerned," Berkman said.

Dozens of DUI cases have been thrown out in local courts because of CMI's refusal to hand over the source code. Several city court judges and county justices of the peace have tossed out the breath-test evidence, which in turn led to prosecutors dismissing the charges.

Recent events echo those in the mid-1990s when defense attorneys challenged the integrity of the RBT IV breath test machine, manufactured by Intoximeters Inc., based in St. Louis. Prosecutors eventually agreed that the device was faulty, which led to 3,000 cases being dismissed at once in 1997 and the total number thrown out about 5,000, Nesci said.

"But this is going to be bigger than the RBT IV," which was only used in Tucson and by a few other agencies statewide, Nesci said.

The Tucson Police Department declined to comment for this article because the Intoxilyzer 8000 case is being litigated.

While the Pima County Sheriff's Department chose to rely on field blood tests to determine blood alcohol content, Tucson police replaced the RBT IV with an older version of the 8000, CMI's Intoxilyzer 5000, which had been shelved.

When the Intoxilyzer 8000 came out, Nesci said, cops everywhere liked it because it was lighter than the clunky 5000 model, which wasn't designed to be mobile. The 8000 could be plugged into the patrol car's dash, unlike the 5000, which was hooked to a converter or generator in the car's trunk.

Defense attorneys are curious, Nesci said, about the versions of software CMI gave DPS for testing and for release on the streets.

CMI customizes software codes for each state, depending on liquor laws and specifications for breath testing.

DPS tested version 8000.00, Nesci said.

"Once that was approved, those machines left the state," Nesci said.

The version first put on the streets was 8000.44, Nesci said.

"We want to know how versions .41, .42. and .43 were different from the one approved," Nesci said.

"Then they switched to version .45 almost immediately," Nesci said.

The version now used is .46.

"Now we have a .47 sitting in a crime lab in Phoenix," Nesci said.

CMI President Hall testified in another local case that there were problems with the .46 version that were corrected, Nesci said.

"You'd think if there were problems with software that were big enough to have been corrected, they would need to tell the people who tested the defective software," Nesci said.

"But nobody was ever notified there were problems," Nesci said.

Bernini seems to be perplexed as to why CMI hasn't been more forthcoming, at least as far as the cases before her are concerned.

"Every lawyer in this room should be concerned about CMI's unwillingness to follow the court's order," the judge said last month.

Nesci and other defense attorneys see CMI's obstinacy as a defensive cover-up.

Hall said previously that CMI is protecting trade secrets.

"Their refusal to disclose the software is kind of a mystery to me," said John Fusco, president of CMI rival National Patent Analytical Systems of Mansfield, Ohio.

"Saying it's a trade secret doesn't get me anywhere," Fusco said.

"All software, for the most part, is very hardware specific," Fusco said. "Their software really can't be used unless another manufacturer is willing to duplicate their hardware."

Fusco, who once was a sales representative for CMI, said the Intoxilyzer's technology isn't as novel as the company touts it to be.

"It's been around for 30 years," Fusco said.

Fusco said he's often asked for software to his DataMaster alcohol breath detector.

"It's a real pain," Fusco said.

But Fusco complies and even conducts seminars twice a year for defense attorneys wanting to know more about his product.

When asked for the software, Fusco sends a letter detailing the specifics, which includes the code in digital format for $350, which covers services to reproduce the compact disc.

Fusco said he rarely hears back from defense attorneys.

"What they want is for me to say 'no,' " Fusco said.

Fusco said the costs of expert analysis of the software, upward of $100,000, is often too prohibitive for defense attorneys.

If there is a legitimate problem with the code, Fusco said, NPAS will fix it.

NPAS also reviews results of outside analysis to ensure truthful testimony in court cases, he said.

CMI has told defense attorneys it will provide its source code on paper but Fusco said it is "completely useless in hardback."

Nesci and law partner Joseph P. St. Louis said the Pima County cases will hold up on appeal, unlike cases in other states.

"I don't think any other state has duplicated what we've seen here," St. Louis said. "All the judges (here) are saying this needs to be produced or there will be consequences.

"All the other states are watching us to see what happens next."