Archive for January 13th, 2009

Justice vs Profits: Guess Which Wins…Again?

Tuesday, January 13th, 2009

Guilt or innocence in a drunk driving case commonly hinges on the breath test — and on the accuracy and reliability of the breath machine.  I’ve written ad nauseum in the past about the demonstrated lack of both — and on the success of manufacturers in keeping the inner workings of their machines secret.  See, for example, What Are Breathalyzer Manufacturers Hiding?   Amazingly, these devices which largely determine guilt or innocence, remain mysterious "black boxes" — run by software which is kept secret from the accused, his attorney, and even from prosecutors and the courts.

Recently, judges in a few states have begun ordering the manufacturers to turn over the software ("source code") so that the defense can have it analyzed for accuracy.  The manufacturers have refused, and have spent huge amounts in legal fees to keep anyone from peering inside their machines. 

Once again, they’ve won….


Judge Rescinds Order for DUI Breath-Test Device Code

Tucson, AZ.  Jan. 12 – A Pima County Superior Court judge who ordered a Kentucky firm to divulge the software code of its alcohol breath-test machine has rescinded her order, saying she doesn’t have jurisdiction to rule.

Judge Deborah Bernini said in a ruling issued Monday that CMI Inc. of Owensboro, Ky., isn’t authorized to do business in Arizona.  Therefore, her orders in a local case don’t extend beyond the state’s borders…

Phoenix attorney Michael Parrish argued before Bernini last week that the Uniform Act maintains that an order for CMI to give up the source code must come from a Kentucky court.

Bernini agreed.

"Because an Arizona court cannot compel production of documents or things not maintained within this state, the only lawful method that may be utilized to compel CMI to produce the source code in Arizona is compliance with the Uniform Act," she said in her ruling.

So far, other attorneys who have tried this method have failed to get the Owensboro court, which is named in honor of a relative of CMI’s own attorney, to order CMI to divulge its source code, (Tucson defense attorney James) Nesci said.

Defense attorneys had asked Bernini to find CMI in contempt of court because it failed to deliver the source code. Because the court had no jurisdiction to issue the order for the source code, Bernini wrote, the contempt sanction "is no longer appropriate."

In September, Bernini granted a defense request 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 they’ve found problems traced to CMI Intoxilyzer 8000’s software that can skew results of blood-alcohol content readings.

In making her ruling, Bernini noted that state’s witnesses agreed "there are defects in the machine and ‘bugs’ in the software that are attributable to the source code."


So….even the prosecution experts agree that there are "defects in the machine…attributable to the source code"…but the defense can’t look at the source code…because only a judge in a Kentucky county (named after the manufacturer’s attorney and where the manufacturer is a major employer) can do that.

And "trial my machine" continues.

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