Judge In Tucson DUI Cases Orders Prosecutors To Get Intoxilyzer Source Code

There is also an issue in this case as to the constitutionality of paragraph C ARS 28-1323, which states that the source code is not necessary for the acceptance of breathilyzer results into evidence. The judge has in effect declared this statute invalid and unconstitutional. She also denied the prosicution time to appeal her ruling to the Court of Appeals. I submit that this is an extrodinary step for a Superior Court Judge to take. Questions as to the constitutionality of a statute are generally decided at the Court of Appeals or State Supreme Court level or in the federal court system.
Without offering any comment as to the constitutional validity of ARS 28-1323 Paragraph C, I would like to point out that this paragraph is a fairly recent addition to the Arizona Statue and that prior to its adoption it was reviewed by the legislative office of the Supreme Court as to whether it was constitutional. It did pass muster with the reviewing office prior to becomming law.
Things may start to become very interesting.

Frank,

Saying that a law will ultimately be found to be Constitutional because it withstood review of the legislative office of the Supreme Court misses the fact that there was likely nobody during the review period strongly advocating against it, nor anybody with standing to do so at the time it was passed.

There have been many laws that have been declared unconstitutional, and one can assume that somebody advised that they would hold up. That's the beauty of our system.

A stay for review by the court of appeals would not be necessary to preserve the State's right to appeal later on. All it would have done is given CMI a stay on revelation of the source code. While the State and CMI dragged their feet, more people would be arrested and tested on the Intoxilyzer, potentially jeopardizing the prosecution of those cases if the Superior Court's ruling holds up.

What are they hiding? If there is nothing that the defense could find to call the results legitimately into question, what are they worried about?

Would you like them to turn over the code? Or do you think there is a legitimate reason that they shouldn't have to, and that CMI products should continue to be used to convict people?

Dan

I have no opinion as to whether ARS 28-1323 paragraph C is constitutional or not. What I am questioning is the way the Superior Court Judge dismissed the law. I believe this type of decision, as to the constutional validity of a statue, should have been, and hopefully ultimately will be, "kicked upstairs to the Court of Appeals for a diecision. In particular I believe the Superor Court Judge should have allowed the prosicutions request for adequate time for filing an appeal to the Court of Appeals. In short I believe the Superior Court is not the appropriate venue to decide matters as to the constitional validity of a statute. I believe the Superior Court is within its power to question a statute but should refer such a matter to a higher court for decision.

As to your comment on the source code. Personally I would prefer to see the source code available for examination. If and when it is made available I strongly suspect that the source code will show that the Intoxilyzer 8000 works as the manufactor clains and is accurate for measureing a BAC to with in plus or minus 0.02. I do expect that if and when the source code is made available that defence attorneys will find some additional argurements with which to challenge the device. Whether these are truly scientifically valid arguements untimately depends on ones definition of "reasonable doubt".

Ultimately I believe the state will be forced to go to 100 percent blood testing for DUI BACs. The question of when is a matter of cost and how quickly, in times of extremely tight budgets, the additional funding necessary for the additional statewide laboratory facilites needed to support such a program can become available.

If you have more comments on this matter I would enjoy reading them.

The role of a Superior Court Judge is to rule on the Constitutionality of statutes and in fact they do it all of the time. Every time a person is convicted of anything under any statute, the Superior Court (or lower court) Judge has affirmed the constitutionality of the underlying law. People only get up in arms about it when it happens to invalidate an ill-conceived law that people perceive to allow criminals to escape punishment.

Here, the Superior Court Judge is not saying that the State can't ultimately challenge the Judge's ruling in the Court of Appeals. She is simply saying that doing so now would be a meaningless exercise. Once the cases are dismissed, then the State can go "upstairs." For those wanting the statute affirmed, it is probably better to do so after an order of dismissal rather than essentially seeking an order of protection against forcing the State to force CMI to disclose (which will be like trying to get water from a rock if history is our guide).

What basis do you have to scientifically suspect that the source code will show no problems? If somebody has that information, it would save a lot of money from our strapped state budget. Money could be saved in the litigation process.

Defense attorneys will always look for arguments that support reasonable doubt. That is our job. Can you imagine a system of justice with a different division of labor? In our system, the Prosecutor is supposed to seek the truth. Knowing for sure how CMI's machine works is a part of the truth. Instead of insisting on disclosure, the State is complicit in CMI's efforts to hide it (whatever it is). In this, the State is acting more like a defense lawyer than a prosecutor. It is the DUI defense bar in Tucson in this case, let by Mr. Nesci, that is acting consistently with its role.

We need checks and balances in our system. The State is trying to prevent the check. How can this be balanced?

More blood labs would cost more initially, but think of the money that could be saved when we stop paying CMI, stop spending legal resourced defending CMI, and start getting more convictions and less litigation because of the use of a more accurate standard: blood.

Think of the useless positions that could be eliminated: the Intoxilyzer quality assurance people, the repair people, the postage sending these electronic paperweights to Kentucky.

There are jurisdictions that currently charge DUI defendants for the blood draw procedure upon conviction. In Scottsdale, for example, the going rate is $34.00. Cost as a prohibitor is an excuse, and a groundless one at that.

If the State is serious about combating DUI, then it is time to get real and get serious. It's time to take these issues out of the hands of politicians and put them into the hands of intelligent thinkers, like the Superior Court Judge in this case. I see no evidence that she is pro-defense or pro-DUI. She is simply doing her job of facilitating the ultimate legal resolution of something that a greedy corporation has forced the people of the State Of Arizona to deal with.

You make some excellent points, most of which I agree with. It will be interesting to see the legal ruleings and decisions that will result as this issue travels up the judicial system.

I agree with you that ultimately the days of the use of the Intoxilyzer 8000 in Arizona are numbered. A month ago I suggested that agencies in the state start a study to see what are the steps necessary and the cost involved in going to 100 percent blood draw for DUI evidence throughout the state. I do not know if any such study has been started yet. It would be useful to know what the opinion of the Criminal Law Bar would be reference such a study.

As for what the source code will ultimately reveal I can only speculate. I suspect that the Intoxilyzer is accurate in "X" percent of cases and not accurate in "Y" percent of cases. The question what is the value of "X" and "Y". Even if "X" is greater than 95% or even 98% I believe that ultimately the courts will find that that is not a high enough standard for conviction. I believe that courts eventually will expect a BAC standard that is above 99% accuracy for conviction.

The only really accurate way to measure the accuracy of the Intoxilyzer 8000 or any similar device would be to have both blood and breath samples from over 1000 individuals and have both test results for each individual and compare the results. So far as I am aware no such large scale study has ever been carried out.

I think a large part of the resistance to change over comes from the fact that most of the costs of testing, setting up labs, buying testing equipment, training and employing personel to both administer tests and operate the equipment come out of police budgets. Where the additional costs of lawyers to prosicute DUI cases where Intoxilyzer 8000 results are an issue come out of county or municipal prosicutor's budgets. Both groups would fight very hard to avoid losing any funding to the other group.

Again I think we are in interesting times.

Frank,

As to you last comment, I want to point out that the police in Arizona have the option to take breath and/or blood in every DUI case. This means that in any given arrest, the cops can insist that the person submit to both an Intoxilyzer test and a blood test. There are very few jurisdictions that do this.

Phoenix would be a fertile testing ground since most if not all of their DUI van operators are trained in both blood and breath. I think the PPD and the prosecutor's office may be scared of the result. One way that they could successfully conduct the study is to take an Intoxilyzer test and draw blood. Keep the blood on ice so that the only expense would be the kit, and the storage (officers are salaried anyways). If the defendant pleads out based on the breath test, then fine, no need to even test. If the defendant doesn't plead out, then test the blood and document the difference. Again, though, this would probably threaten government jobs so probably won't be done.

I think a blood standard with 100% accuracy to within a 10% margin of error is perfectly doable, and would save money if the prosecutors would consistently reduce of dismiss cases that fall within the 10% margin or error.

In the end, as the State proves over and over again, this is as much about preventing the loss of jobs in the DUI industry as it is about crime prevention and public safety.