EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 21, 2008

Tucson Judge Sends Breath Test Results To The Drunk Tank; Judges Statewide Might Follow Suit

A ruling by a City Court judge in Tucson could affect every alcohol breath test conducted in Arizona since December 1, 2006.  That was the date when Arizona adopted the Intoxilyzer 8000 machine made by CMI.  Apparently, defense attorneys in 49 DUI cases before Judge Thomas Berning  had asked for the Intoxilyzer 8000's source code used to create the machine's software.  In response, CMI agreed to make the source code available as long as defense attorneys agreed not to reveal it publicly, which defense attorneys agreed to.  According to a ruling by Judge Berning late last week, however, "Despite this, neither the state nor CMI has released the source code."  Instead, according to Berning, CMI came back with a counteroffer with "more onerous terms" that defense attorneys said were ethically problematic."

Unsatisfied by CMI's bait and switch, Judge Berning tossed out the alcohol breath tests from the 49 DUI cases.  Apparently, there are also 50 to 70 pending cases before other judges who were waiting for Berning's ruling and now presumably will do the same; judges statewide might also follow suit, but everything will likely be put on hold until the prosecutors proceed with an appeal of the ruling.  For instance, Sgt. Mark Robinson, a police spokesman, said the department is aware of Berning's ruling and will wait for the results of the appeal to decide whether to continue using the Intoxilyzer 8000.

So, why did Judge Berning rule in this manner? Well, according to several opinions by the Supreme Court of Arizona, "[u]nder Rules [of Evidence] 702, 703, and 403, expert testimony must (1) come from a qualified expert, (2) be reliable, (3) aid the triers of fact in evaluating and understanding matters not within their common experience, and (4) have probative value that outweighs its prejudicial effect." E.g., State v. Lee, 944 P.2d 1222, 1227 (Ariz. 1997).  Presumably, CMI failing to release its source made it impossible to determine whether Intoxilyzer 8000 results were reliable, making the test inadmissible under factor 2.



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