Breathalyzer Software Issues Give Attorneys Hope for DUI Dismissals Across Arizona

By Ray Stern

This machine, the Intoxilyzer 8000, soon could be the friend, not the foe, of thousands of people being tried for DUI.

The machine is in wide use in Arizona, and many of the units utilize software that even the president of the company that makes the Intoxilyzer says is riddled with bugs, according to Tucson lawyer James Nesci.

Nesci tells New Times he believes a pending DUI court case in the Pima County Superior Court could have wide-ranging effects throughout the whole state, not just the Tucson area.

"I can tell you with absolute certainty that every breath test result on an Intoxilyzer 8000 is inaccurate," Nesci says.

That doesn't mean it's inaccurate enough in every case to give wildly wrong results, such as showing that a totally sober person is drunk. On the other hand, showing the machine routinely spits out faulty data would make all of its readings suspect, the lawyer says.

Nesci's a pro at tackling DUI cases and is the author of a book called, How to Beat a DUI. The Tucson Weekly named him "King of the DUI Defense." He says he's excited about the prospects of the software angle as a defense.

Defense attorneys have examined how they can attack the credibility of the Intoxilyzer 8000's software for at last two years. They've made in-roads in Florida, where judges have ordered the machine's Kentucky manufacturer, CMI, Inc., to turn over the source code of the software. (Source code is the written programming instructions for computer software). The company has steadfastly refused, racking up a million dollars in court fines.

After Toby Hall, president of CMI, gave his testimony in Pima County Superior Court, Judge Deborah Bernini told him he needed to reveal the software's source code. He said he would refuse unless defense attorneys agree to sign a non-disclosure agreement, which they won't do. Bernini has given Hall until November 24 to show good cause as to why he hasn't complied with her order. She could find him in contempt of court if she doesn't like what she hears.

Hall's testimony about flaws in the machine's software caused one Tucson judge to dismiss 19 DUI cases in September.

Cliff Girard, a Phoenix lawyer also working on the Intoxilyzer's potential problems, says it's possible that if the company hands over the source code and it's deemed to be flawed, any police agency that uses the software could see trouble with some of its cases. Phoenix police, for example, use the software identified as having possible bugs, Girard says.

Another possibility is that the company won't turn over the code -- CMI officials reportedly said they would never reveal it. That would spark an appeal that could impact numerous cases, Girard says.

As Nesci puts it: "This could be huge."

For those interested in DUI law, it will be worth looking for news out of Tucson in upcoming days about the Intoxilyzer machine and its software.